Presentation on theme: "Defining the Legal Lines on Cyber-Harassment: A Public Policy Dilemma Shaheen Shariff, Ph.D. Associate Professor McGill University, Faculty of Education."— Presentation transcript:
Sois Sage (Van Praagh, 2007) The notion of being ‘sage’ – good, wise, careful, in line with rules and expectations – is reflected in the picture of the reasonable person in the private law of civil wrongs. ‘Fun’ is necessarily limited by ‘sagesse’: self-fulfillment is necessarily shaped by the obligation not to hurt others. As children explore themselves and their surroundings, gradually becoming aware of others in their lives, they begin the move beyond the realm of ‘carefree’ and into that of ‘caring. The obligation to care for others is slowly added throughout childhood to one’s sense of self. (Van Praagh, 2007:63).
How “Sage” Are We? Today, I want us to consider the notion of wisdom and safety: Are we approaching this phenomenon of sexualized cyberbullying thoughtfully? Is it wise to apply laws that are designed to protect kids to charge and convict them instead? What is our obligation as an adult society to guide, mentor and protect? Is the punishment misdirected and should consequences have an educational and empowering message instead? How should we respond to anti-authority cyber-bullying?
Structure of tonight’s presentation Dilemma for Policy Makers and Educators: Navigating a balance between free expression, safety, privacy, supervision and regulation of sexually rooted “cyberbullying” or cyber- harassment. Institutional obligations – legal rights and responsibilities. Context 1.“Big Stick Sanctions”: Criminal and child pornography laws 2.Other Legal Frameworks that would support and protect 3.Sustainable educational and policy responses that are not “anti- bullying” programs 4.Policy standards for kids and adults – black or white, a range, blurred lines or case by case?
Distinguish between Law’s Objectives and Realistic Policy Distinguishing between law’s objectives relating to actual online child sexual predators (child pornographers) --- versus teenagers forwarding intimate or compromised images of peers to entertain friends/embarrass classmates. Understanding the social context (e.g. rape culture), shifting norms of communication and societal models that inform “digital natives” (Prensky, 2001). Determine which existing legal frameworks apply to address these issues (e.g. child pornography laws, criminal code, public law (tort-e.g. defamation and privacy); constitutional and human rights.
Canadian Context: Pressure on Parliament (Bill C-13) To introduce a national anti-cyberbullying law to prevent suicides. To include specific legislation that addresses sexualized and homophobic cyberbullying. Justice Minister Peter MacKay promises to take a “holistic approach” that includes public dialogue and attention to education. Many provinces have introduced legislation requiring schools (and parents) to address and report it.
Reasons Kids Engage in Cyberbullying: Ages 8 - 12 Participants were provided with a fictitious story in which Diego, the new boy at school, e-mailed all of his classmates inviting them to be his friend. Brian, the most popular boy in school, used the e-mail to make fun of Diego’s linguistic abilities. Question: Why do you think Brian did this? Interestingly, a number of responses are represented here which really illustrates how children are grappling with this type of behaviour. FOR FUN AND STATUS ARE STRONGLY REPRESENTED: They didn’t think it would be taken seriously!” and “It began as a silly joke!” “It’s more of like a weakness-intention thing. To make someone feel weak or some sort of insult like that involves making someone feel lesser than you.”
Reasons Kids Engage in Cyberbullying: Ages 13 - 18 61% give their friends the benefit of the doubt—it is just meant as a joke (harmless fun) Suggests that the threshold for normative online communications has shifted Clear that jealousy and discrimination are not considered to be root causes of cyberbullying in the eyes of older teens Yet, research confirms (Shariff, 2008- 2009) that discrimination is at the root of most cyberbullying FOCUS GROUPS DISCUSSED HOW SYMBOLIC CUES AND RELATIONSHIPS CAN HELP DEFINE THE LINE: The people who know the situation the best are the two people talking, and you know what was called for and what was uncalled for. People like to add like ‘lol’ OR ‘jk’… like just kidding or whatever and to think that what their comment makes it seems like say sort of funny.
Awareness of Potential Legal Consequences: Ages 8 – 12 Question: Do you think young people today think about their actions, when they send a text or e-mail that might hurt someone else? 18% of participants believed that despite the fact many young people were aware of the consequences of their actions, they simply did not care and posted what they wanted to anyway. The aforementioned is a disturbing statistic but might be rectified through enhanced legal literacy programs 11% of participants believed that kids understand the consequences but sometimes only recognize them after the fact when it is too late
Awareness of Potential Legal Consequences: Ages 13 – 18 Question: Do you think young people today think about their actions, when they send a text or e-mail that might hurt someone else? 37% of participants don’t care and will post regardless. Aforementioned statistic calls for the need to find focused ways to make them care about what they post online Almost 10% understand the consequences but have issues recognizing context—e.g. the mean something as a joke and then it is taken literally
Insight into Empathy: Dana’s Story Scenario: Dana passed out drunk at Louise’s party, prompting Louise to take a picture of her and share it with others online. Question: Does Dana have the right to object to Louise posting her photo online without her permission? 99% of participants said Dana DOES have the right to object Concerns for vulnerability displays empathy When asked to comment on the first story, students wrote: “I don't think this is right or fair, because the person whose privacy is being violated had no choice.” “Shouldn’t take advantage of people when they are drunk.”
Insight into Empathy: Angee’s Story Scenario: Angee sent Brian a sexually explicit photo, which he later sent to others. Question: Does Angee have the right to object to Brian sharing her photo with others without her permission? BIG DISCREPANCY: ONLY 52% THINK SHE HAS THE RIGHT TO OBJECT Here we must consider issues of agency and normativity Somehow, the physical action of sending an image of oneself destroys one’s right to privacy, regardless of one’s intention for the image or text to remain between the sender and recipient. One participant commented: She [Angee] deserves no resp[ect], for her behaviour is shameful and requires punishment.
Well Publicized Cases of Online Sexual Harassment Impulsive decision: 16 year-old girl in Maple Ridge, B.C. gang raped and filmed. 16 year-boy passed video to an older friend to post on Facebook. Sentence: Essay on evils of the Internet. Suicide: 14 year-old Amanda Todd. Adult “capper” pedophile engaged in online extortion, posted semi-nude picture online, cyberbullied by classmates. 17 year-old RP, Nova Scotia teen was the 7 th to commit suicide in that province after she was drugged and raped and rape video posted online. Stuebenville case in U.S. is similar to this where victim was incapacitated by alcohol. U.S. case of Dharun Ravi who filmed his roommate Tyler Clementi’s sexual activity with another male student at Rutgers University and Clementi killed himself. Minimal sentence for Ravi.
Well Publicized Cases of Cyber-harassment Teens Arrested and Charged: 10 Laval boys for production, possession and distribution of child pornography after nude photographs were sent via Snapchat, photographed and distributed. B.C. Girl Convicted: A B.C. girl has been convicted of distribution of child pornography and will appeal on constitutional grounds. D.C. vs. R. R. (California case of defamation). Is hyperbole an actionable tort? Does it carry the same value as free speech? Maple Ridge Rape (child pornography charges – and Evils of Internet)
Context: Popular and “Rape” Culture Girls receive confusing messages about asserting sexuality (e.g. celebrities) “Slut-shaming” – dehumanizing victims, re-victimizing through spread of pictures; “Victim blaming” “she asked for it” “Campus rape culture” or “normalized rape culture”: St. Mary’s University FROSH song, see: http://www.youtube.com/watch?v=3IUQsrmWkrU http://www.youtube.com/watch?v=3IUQsrmWkrU University of Ottawa student union female president harassed “Date rape” – girls drugged and filmed, posted and distributed.
U of Ottawa Student “Leadership” University of Ottawa had recently suspended its men’s hockey team for sexting hazing after allegations of sexual assault emerged around the team’s conduct while in Thunder Bay (Bradshaw, 2014). More recently, shocking evidence of rape culture surfaced within the student leadership at the University of Ottawa, Canada’s capital city, and the hub of law and policy. Below is an excerpt from the online conversation that took place about the University of Ottawa’s student council President, Anne Marie Roy. These quotes come from the blog, The Belle Jar ( Source: http://bellejar.ca/2014/02/28/rape-culture-at-the-university-of-ottawa/retrieved April, 26, 2014) Retrieved April 26 th, 2014 ): Bart Tremblay [a non-elected student]: Let me tell you something right now: the “tri- fluvienne” [nickname for someone from Trois-Rivières, Québec] president will s... me off in her office chair and after I will f... her in the a.. on Pat [Marquis]‘s desk. Alex Larochelle [VP Social for the Criminology Student Association]: Someone punish her with their shaft. Alexandre Giroux [Board of directors of the Student Federation of the University of Ottawa]: Well Christ, if you f... Anne Marie I will definitely buy you a beer.
. What’s Really Happening? Weber & Mitchell (2008) conduct international research on girls and their uses of technologies, observing that: – Social networking empowers girls to construct and produce strong and independent identities through on-line personal diaries, which they define as “public-privacy.” (p. 28). – Directed to friends privately through public website. Blurs legal boundaries and notions of “public” and “private” as they currently exist. – For adolescents and teens -- friends’ opinions are critically important.
Does Current Law Address Convergence Culture? On September, 2009 – Harvard University Law Professor, John Palfrey testified before the U.S. Congress: Urged lawmakers to consider problems of cyber-bullying and related Internet concerns more broadly and not to put sole blame on new technologies. First, overwhelmingly, most of the ways in which young people use digital technologies are positive... Most young people, at least in the United States, do not distinguish between their ‘online’ and ‘offline’ lives. As a result, many of the good things that have gone on offline also happen, in one form or another, online: so, too, do many of the bad things that happen in everyday life play out also online.
Emerging Laws on Cyberbullying Federal Legislation Bill C-13 - Proposed new law to update the Canadian Criminal Code and address cyberbullying Focus on non-consensual distribution of intimate images, jail terms, police discretion and judicial orders to remove offensive material; Controversial – currently being debated by House of Commons Committee. Canadian Omnibus Legislation – Safe Streets and Communities Act -Harsher and longer sentences -Raised to adult court at younger ages Provincial Legislation Ontario’s Acceptance Act - Requires schools to pay attention and improve school environments; Quebec’s Bill 56 - Requires schools to report it every year and improve school environments; Nova Scotia’s Cyber-Safety Act holds parents accountable if children bully and categorizes distribution of photographs and rumors as eligible for civil lawsuits - private lawsuits. Manitoba’s proposed law was controversial because it requires reporting of all incidents of cyberbullying to school principals – teacher unions are against extra work.
Palfrey Report Role of Technology Companies The law needs to provide incentives for technology companies to support and work to protect young users – and harness their innovations. Rethink existing laws by re-examining legal frameworks towards reasonable enforceability. AWARE US legislation is a great idea because it supports grants for youth at risk and partnerships between private and public sectors and close connection between research community and school community. American libel cases such as Zeran (see Shariff, 2008-09)define on-line intermediaries as “distributors” and not “publishers” Difficult to hold them responsible for failure to monitor defamatory or offensive expression.