Defining the Legal Lines on Cyber-Harassment: A Public Policy Dilemma
Shaheen Shariff, Ph.D.
Associate Professor
McGill University, Faculty of Education
© Shaheen Shariff, Definetheline.ca - Projects on Cyber-bullying and Digital Citizenship, McGill University
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 cyberharassment.
• 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 “antibullying” 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.
Influence of News Media
Sentencing includes an essay
on “Evils of the Internet””
Amanda Todd
Suicide Facebook
page -Trolls &
Cappers
Online menace isn’t
“just a joke”: [say] Police
Dealing Effectively with Bullying
Requires Tolerance
© Shaheen Shariff, Ph.D.
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.
Role of Law and the Policy Vacuum
• What is the role of law in preventing and regulating cyber-harassment?
• Do we need strict new laws that criminalize children or would existing law
apply?
• What is “tangible harm” online and “intent” to harm online?
• How do news media, popular and “rape culture” influence children’s
online communication and public policy responses?
• Should plaintiffs’ identities be protected in defamation suits for cyberharassment and ruined reputations?
© Shaheen Shariff, Ph.D.
Protect or Punish?
•
How do we assess harm through online sexual offenses (tangible/intangible,
intentional/unintentional)?
•
How many judges still assume that online sexual harassment or embarrassment is not as harmful
as physical injuries?
•
Ironically, the actual physical rapes receiving less attention by police than the online distribution.
•
Institutional responsibilities - nexus (classmates, teachers, professors)?
•
Norms and perceptions of harm by “digital natives” (Prensky, 2001) have shifted:
- Higher tolerance for insults, jokes, pranks;
- Less consideration of impact on others;
- Less recognition of boundaries between public and private spaces online;
- Less awareness of legal risks (which are rapidly increasing as legal responses evoked);
- Tacit condoning of intolerance by some policy-makers and role models.
•
An Austrian study found that anger and fun are at the top of youth motivations to cyberbully
(Gradinger, Storhmeier and Spiel, 2012, in Smith et al, Wiley-Blackwell).
© Shaheen Shariff, Ph.D.
Defining the Line: What are Digital Kids Saying?
Current five year qualitative research using surveys and focus groups with:
• 1,088 children (8-12) and teens (13-18);
• Learn more about social media use at universities;
• Sensitize law enforcement and prosecutors; and
• Review court decisions to understand how judges are thinking about children’s
online behavior and how they might apply new laws.
Juxtaposing the differences and disconnections between:
• How kids and young adults think about socially responsible online communication;
• How the legal community thinks about their legal responsibilities during online
communication.
Legal Literacy: Develop resources and programs for children and teens, parents,
educators and legal community including judges, police and lawyers.
Provide resources through www.definetheline.ca and hands on workshops.
© Shaheen Shariff, Ph.D.
Reasons Kids Engage in Cyberbullying:
Ages 8 - 12
2%
For fun
26%
Jealousy
Othering or to
discriminate
41%
Retaliation
Status
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?
13%
To compete
5%
13%
To vent
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
1%
For fun
10%
Jealousy
Othering or to
discriminate
17%
Retaliation
Status
61%
7%
To compete
4%
To vent
• 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, 20082009) 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
Yes
But internet hides identity
and makes us feel safe to say
what we want
But they don't know all the
consequences
11%
5%
But think it will remain
private
18%
58%
Don't care
2%
3%
3%
Meant to be a joke and or
harmless
Only after the fact
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
Yes
But internet hides identity and
makes us feel safe to say what
we want
But they don't know all the
consequences
37%
But think it will remain private
50%
Don't care
1%
9%
1%
2%
Meant to be a joke and or
harmless
Only after the fact
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
1%
Dana does have the
right to object to
Louise posting her
photo online
without her
permission
99%
Dana does not have
the right to object to
Louise posting her
photo online
without her
permission
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
Angee does have the
right to object to
Brian sharing her
photo without her
permission
2%
46%
52%
Angee does not have
the right to object to
Brian sharing her
photo without her
permission
Unanswered
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.
Canadian Legal Approaches
Few cases have been considered in Canadian courts:
•
Alberta teen charged in 2007 with distribution and possession of porn after distributing
naked pictures sent by a 15-year-old girl pleaded guilty to a reduced charge of
“corrupting morals.”
•
In the Quebec case of Aubry v. Editions Vice Versa the circulation of private
photographs were considered to be a civil law breach of the Quebec Charter’s
protections of “private life.” (Slane, **).
– The court ruled in favor of a 17-year-old girl, taking into consideration her social
circle and precisely a “teenager’s sensitivity to teasing by her friends” as
foreseeable harm. In other words a person’s reputation can trump free
expression.
© Shaheen Shariff, Ph.D.
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 7th 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)
Amanda Todd
•
•
•
•
•
•
•
•
•
•
Adult “capper” engaged in extortion after she posed semi-nude online.
Spread to her friends on social media when she refused to do more.
Photograph distributed among schoolmates and cyberbullying continued.
Posted video with messages of her plight before committing suicide.
Media showed this video repeatedly giving platform to the “cappers” and “trolls” to
continue offensive postings after death.
Should they be culpable under the law in the same way.
The adult perpetrator(s) had engaged in online extortion, sexual harassment,
criminal defamation;
The teens had engaged in online sexual harassment and “slut-shaming.”
Teens spread it as a “joke” but cappers had motives for child pornography.
Parents and news media drew national attention and calls for a national strategy to
address cyberbullying. Defeated in Parliament.
© Shaheen Shariff, Ph.D.
R.P.
•
Nova Scotia teenager drugged and raped and videotaped.
•
Videotape distributed on social media.
•
Cyberbullying ensued. R.P. committed suicide 2013. Her death came after six suicides in Nova
Scotia in 2011.
•
Parents and entire family very active in advocating for changes to the Criminal Code of
Canada and for specific laws on cyberbullying.
•
Nova Scotia Task Force on Cyberbullying established by Ministry of Education and report
called “There’s No App for That…” recommended dialogue and restorative justice responses.
•
Father effective in lobbying with Nova Scotia government to implement the Cyber-Safety Act.
•
Comprehensive definition:
–
Allows victims and families to sue for remedies under tort law.
–
Holds parents responsible for their children’s actions.
–
But not much support for education.
•
Father successful in lobbying Federal Justice Dept. to table amendments to Criminal Code.
•
Stored, retrieved, re-victimized – never goes away – like the ad of R.P. on Facebook.
© Shaheen Shariff, Ph.D.
Maple Ridge: Just Joking or Breaking the Law?
VIDEO-TAPE OF SEXUAL ASSUALT - DISTRIBUTION OF CHILD PORNOGRAPHY?
• Criminal intent or intent to embarrass?
• Will an essay about “evils of the Internet” teach him anything?
• Numerous cases like this involving sexting.
• Anger is another impulsive response when relations sour (Florida case).
• Are child pornography laws appropriate?
• Intent of hard core child pornographers is very different - it involves the sexual abuse
and exploitation of children for adult pleasure e.g. Cappers - a pedophile group that
encourages teenage girls to undress online and then engages in extortion.
•
DEBATE ABOUT INTENT TO EMBARRASS by immature youth and intent to harm.
© Shaheen Shariff, Ph.D.
Rutgers Clementi Case:
Joking or Breaking the Law?
•
•
Dharun Ravi filmed and posted videotapes of roommate Tyler Clementi in homosexual
relationship for a prank - Clementi committed suicide.
Ravi convicted of 15 counts including bias intimidation, invasion of privacy and tampering
with a witness and evidence. Faced up to 10 years in prison.
SENTENCING JUDGE RULED: “Colossal Insensitivity” but no criminal intent to harm. Immature
prank - 30 days in jail
SIMILAR ISSUES AS PREVIOUS
Digital natives impulsivity and insensitivity - does this amount to Criminal intent?
Interesting that possession and distribution of pornography was not used in this case:
• An Austrian study found that anger and fun are at the top of youth motivations to cyberbully
(Gradinger, Storhmeier and Spiel, 2012, in Smith et al, Wiley-Blackwell).
• Patchin & Hinduja (2010) – on bullycide note that the cyberbullying itself may not push
someone over the edge but if there are existing mental health problems that might.
© Shaheen Shariff, Ph.D.
California Case:
Joking or Legal Liability?
JOKES AND SPREADING FALSE RUMOURS
• D.C., an up-and-coming musician, set up a website describing his appearance
(“golden brown eyes”) and his music, film contract, and CD.
• His website had a guestbook inviting comments on his website.
• His guestbook received death threats and comments such as this, which was written
by R.R.:
“I will personally unleash my man-seed in those golden brown eyes.” (D.C. et al vs. R.R.
et al - Court of Appeal, State of California, Reasons for Judgment, p. 5, March 15,
2010: p.5.)
• D.C. suffered psychological harm and L.A. Police Department asked him relocate to
another school for safety, cost to family, film contract delayed, people began to
believe he was gay, underwent medical treatment, grades dropped with confidence.
© Shaheen Shariff, Ph.D.
California Case: D.C. vs. R.R. et al (2010):
Joking or Breaking the Law?
R.R. defended his actions by testifying:
• He did not know D.C. or care if he was gay. A friend suggested he view the website.
• Irritated by D.C.’s arrogance and description of his “golden brown eyes.”
• Competition to see who could post the most outrageous comments.
• Described his own message as “[F]anciful, hyperbolic, jocular, and taunting”
motivated by “[D.C.’] pompous, self aggrandizing, and narcissistic website - not his
sexual orientation.”(p.10-11).
• Explained his other motive as “pathological” (p.11) - to win the one-upmanship
contest tacitly taking place between the message posters.
• Argued that he assumed any rational person would understand his repulsion to
D.C.’s self promotional style. (pp. 10-11, Reasons for Judgment). Reflects the shift
in norms among digital natives.
• Both he and his parents filed affidavits saying R.R. is non-violent, a vegetarian and a
Buddhist.
© Shaheen Shariff, Ph.D.
California Case: D.C. vs. R.R. et al (2010)
COURT OF APPEAL RULING
Re: Free Expression, Public website and libellous content
• Although hyperbole and “mere jokes” (p.18) are protected by the First Amendment,
the banning of “true threats” is not unconstitutional.
• Not necessary for speaker to intend the threat - fear of the threat disrupts lives. (p.17)
• Limiting on-line threats protects from the “possibility that the threatened violence will
occur.” (p.17)
• The further speech strays from the values of persuasion, dialogue and free exchange of
ideas and moves towards threats the less it is protected. (p. 18)
• Impact on victim, his family and perceived threat to safety must be considered.
• False information on sexual orientation caused reasonable people to believe it as truth
- therefore the expression was libellous.
© Shaheen Shariff, Ph.D.
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
 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 26th, 2014):
Bart Tremblay [a non-elected student]: Let me tell you something right now: the “trifluvienne” [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.
Profile of an Adult who Cyberbullied
David Abitbol (28 years old);
Lives at home;
On-line screen-name: “David
–
–
–
–
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–
–
Darkiller”
Threats against former teachers who he thinks “deserved to die.”
On-line comments: “Death is the only answer”
Five guns found in his possession, some unregistered
Sleeps with his guns to protect from “elves”
Child pornography found in his room as well as the guns.
Charged with criminal threats, possession of unregistered firearms and
possession of child pornography
Released on bail.
© Shaheen Shariff, Ph.D.
Joking & Anti-Authority Expression
Just wanted to make friends laugh!
Social Networking Sites (Facebook, MySpace)
– Teachers have been falsely described as engaging in sexual acts in class.
– Principals have been described as pedophiles.
– Sexual orientation, hygiene, teaching styles are discussed.
– Unflattering photographs are posted with insults and defamatory
statements.
Video-sites (YouTube)
• Teachers are provoked and filmed on cellular phones when frustrated –
videos are subsequently posted on YouTube.
© Shaheen Shariff, Ph.D.
Cyber-bullying, Joking, or
Private Conversations?
BK’s FaceBook lie about his female teacher masterbating in class.
• Interviewed on CBC and explained he was joking in a private conversation with friends
Students at a school in Montreal and two schools in Ontario engaged in similar on-line
discourses out teachers’ and school administrators.
• All were suspended or expelled under zero-tolerance policies.
• The students claimed infringement of their Charter rights to free expression.
• Rejected claims of “cyber-bullying” because teachers were not directly targeted.
• Insisted they were simply having “private conversations” or “joking.”
Canadian Teachers’ Federation in 2008 called for “cyber-bullying” to be added as a
sanction to the Criminal Code but what they really meant was “cyber-libel” against
teachers.
© Shaheen Shariff, Ph.D.
Cyber-bullying or Bad Joke
Teacher in Foshan Guangdong found photographs of his face on-line in the
Foshan Daily Forum posted onto 1) naked human body; 2) body of a
monkey; 3) body of a chicken,
Student (Xioarong) who modified the photographs claimed he did not realize that
he broke the law by modifying pornographic photos using Photoshop
software.
Perceived his actions would be received as a joke.
• Not meant to harm his teacher at all.
• Simply wanted to make his friends laugh (Zhang & Wei, 2007, July 22).
Xiaorong was fined equivalent of $500 for being a nuisance.
© Shaheen Shariff, Ph.D.
U.S. True Threat Cases
Anti-Authority Student Expression (American courts)
(J.S., a Minor, v. Bethlehem Area School District (2000))
Teacher Sux’ website:
Why Fulmer should be fired
She shows of her fat f...... legs
She’s a b...h
Why should she die?
Give me $20 to help pay for the hit man
Diagram of Mrs. Fulmer with her head cut off.
© Shaheen Shariff, Ph.D.
U.S. Protected Expression?
Hey you piece of green-castle s..t
What the f... do you think of me [now] that you can[‘t] control me? Huh?
Ha ha ha guess what I’ll wear my f....ng piercings all day long and to school and
you can[‘t] do s..t about it! Ha ha f....ing ha! Stupid Bastard!
Oh and kudos to whomever made this [I’m] pretty sure I know who).
Get a background.
(Appellant’s application p. 69)
The next day she posted: die . . . gobert . . . die.” (Ibid., p.70). Separate
A.B. v. State of Indiana, No. 67A01-0609-JV-372, 2007 Ind. App.
LEXIS 694 (Ind. Ct. App. Apr. 9, 2007)
© Shaheen Shariff, Ph.D.
Sexting: Public Porn or Private Digital Bedrooms?
Philadelphia Case (under appeal to U.S. Court of Appeals, Third Circuit):
3 girls charged for distribution of pornography under Philadelphia pornography laws.
“Sexting”: Posting photos of two 12-year-old girls in training bras, and a 16-year-old
wrapped in a towel with her breasts exposed as she leaves a shower.
•
The lower court judge also required them to take “re-education” classes.
•
Defense attorneys argue breach of First Amendment rights.
•
Maintain that photos were posted for viewing by friends as part of the girls’ publicprivacy social networking – NOT intended as pornography.
© Shaheen Shariff, Ph.D.
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.
.
“Bedroom Culture” “Digital Bedrooms”
“Public-Privacy”
Girl culture studies coined the term “Bedroom Culture” in 1976 (McRobbie & Garber, 1976):
• Girls’ bedrooms although physically private, are highly social spaces (chat on
telephone with friends, pin up posters, have pajama parties, write in diaries, listen to
music).
Evolved into the “Digital Bedroom” (Sefton-Green and Buckingham **).
• Location of children’s/adolescent’s cyber play: gaming, webs-surfing, social
networking, and particularly, as a descriptor of girls’ websites.
Weber & Mitchell (2008) studied 50 eleven and twelve-year-old middle-class girls in South
Africa who participated in a “digital bedroom” project as part of a second language
course using digital cameras and power-point. The researchers observed the
following:
© Shaheen Shariff, Ph.D.
“Digital Bedrooms” &
“Public-Private” Spaces
This South African project offered a “glimpse into the world of girls that links the
construction of identity, space, and digital technology.” (Weber & Mitchell, **:35).
What they have chosen to photograph [in a private space] and project in a public
space also represents a social act, not just in relation to what they initially chose to
photograph but also in relation to what they chose to project to their peers and
teacher. In this respect, their work is not that different from the photo-sharing
associated with their cell phone use or within social networking sites…The girls’
choices of image raise fascinating questions about their personal-public identities.
(Emphasis added, Weber & Mitchell, **:36).
Plausible that the American girls charged with pornography in the Philadelphia case
were simply engaging in “digital bedroom” activities that included on-line social
networking with their friends through photographs of their private space.
© Shaheen Shariff, Ph.D.
Reactive Legal Response
to Moral Panic over Sexting
Florida, U.S.A:
•
•
•
•
18-year-old Philip Albert was jilted by girlfriend Jesse Logan.
Reacted by emailing intimate photographs of Jesse that she had sent him in
confidence to 70 people including her grandparents.
Jesse committed suicide.
Philip charged under Florida’s sex offender laws and kept under surveillance (Slane,
2009).
•
First Amendment and Internet Law attorney Lawrence Walters argued that while the
act of distributing such photos is wrong, they should not fall under child pornography
laws because:
– a) those laws are targeted towards adult sexual abuse of children; and;
– b) teens are being held to a higher standard than adults because we do not
punish adults who engage in that behavior (Slane, 2009:).
© Shaheen Shariff, Ph.D.
Child Pornography Laws should Protect Kids
Those who are adjudicated or convicted of child pornography offenses are sexual
offenders and often predators…Teenagers who engage in sexting should not face the
same legal and moral conundrum. [Judge Robert L. Steinberg at p.11 in RE: C.S.,
2012)
The statute at issue was designed to protect children, but in this case the court has
allowed the state to use it against a child in a way that criminalizes conduct that is
protected by constitutional right of privacy. (Judge Padovano, dissenting at para 241
in A.H. v State of Florida, 2007)
© Shaheen Shariff, Ph.D.
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.
© Shaheen Shariff, Ph.D.
Fear-based Responses
Although public feedback blogs are beginning to provide balance:
Fear of a loss of control:
• Perception of too much power in the hands of teens that needs control.
• Moral panic about the dangers of Internet for girls (not new).
Adult Responses:
• Adult mindset grounded in zero-tolerance (military models).
• Less attention is to root societal attitudes/off-line discrimination.
• Increased calls for bans, legislation and “criminalization.”
• Reduced emphasis on education (adults and youth) or effort to understand
how young people’s entire social life makes no distinction between on and
off-line spaces.
© Shaheen Shariff, Ph.D.
Remember what it was to be young
Adolescence is the process of childhood most obviously marked by the co-existence
of the need for protection and the development of self-reliance and independence .
. . Harry Potter books . . . are a good place to look if we want to contemplate
adolescence and its necessarily fluid character. The development of young people,
or the way in which youth is linked to special vulnerability and to evolving
autonomy, is central to J.K. Rowling’s highly entertaining, thoughtful and well-cast
prose. Private law, or, more specifically, the law of civil wrongs and liability, is also
a good site for considering the texture and meaning of adolescence…
While not fiction of the same caliber or appeal as Harry Potter, stories in private
law, can portray the particular complexities of adolescence and the paradoxical
nature of youth. In particular, when law is confronted with children roughly aged
11 to 15 years, it must explicitly juggle needs and choices, protection and
independence, strengths and weaknesses. (Van Praagh, 2005, p. 336).
© Shaheen Shariff, Ph.D.
Established Law Might Better Address the Policy Vacuum
Criminal law (on and offline threats, intimidation and distribution of offensive material
online). CTF and parent lobbies called for amendments to Criminal Code to include
cyberbullying in 2008 - resulted in the legislation mentioned earlier
Tort law (cyber-libel and/or negligence):
• Online gossip, modified photographs, demeaning jokes, unfair comment.
• Can professors, teachers, administrators be held negligent in protecting students
from harm?
• Privacy considerations - boundaries of online privacy
Constitutional law:
• Victims: privacy, safety and equality rights (S. 7, 15 Charter);
• Perpetrators: Policy makers risk impairing free expression rights, arrest and
detention rights, equality rights, and privacy rights (S. 2(b), 8- 13, 15)
© Shaheen Shariff, Ph.D.
Enhance Literacies for Adults and Kids
Former Chief Justice Bora Laskin of the Supreme Court of Canada (1977):
I’m very much concerned about the lack of education in the legal process in our
schools, up to and including university. Its very important to have a citizenry which is
socially literate and social literacy to me involves some appreciation of the legal
system. There isn’t a single act that any government can do that does not have to
find its course in the legal sytem. It’s just as important that our people have some
appreciation of the law as they should of English or French literature or economics. I
hope that our educational authorities will pay attention to this.
(as quoted in Shariff, 2003, Ph.D. Dissertation).
© Shaheen Shariff, Ph.D.
Define the Line:
Cyber-Libel and Ruined Reputations
TEST: If an “ordinary person” is likely to believe the on-line comments this constitutes
unfair comment, ruining reputation:
A good reputation is closely related to the innate worthiness and dignity of the
individual. It is an attribute that must, just as much as freedom of expression, be
protected by society’s law . . . Democracy has always recognized and cherished the
fundamental importance of an individual . . . The reputation tarnished by libel can
seldom regain its former luster. A democratic society therefore, has an interest in
ensuring that its members can enjoy and protect their good reputation so long as it
is merited. [Emphasis added]
SCC: Hill v. Church of Scientology of Toronto (1995)
Questions:
Can the “ordinary person’s” test be applied equally to children, adolescents, teens
and adults? Would this apply to distribution of photographs rather than spoken or
written expression?
© Shaheen Shariff, Ph.D.
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.
Other Canadian Legal Responses: Federal
Senate Standing Committee on Human Rights.
Studied Canada’s responsibility to protect youth under Article 19 of the International
Convention of the Rights of the Child.
• Article 3 – Best interests of the child
• Article 12 – Participation (Right to be Heard)
• Article 19 – Protection against abuse, neglect, etc.
Recommended the appointment of a Children’s Commissioner – defeated in Parliament;
Recommended a return to Restorative Justice practices.
But lets look at what else can be done:
© Shaheen Shariff, Ph.D.
Remember what it was to be young
“Where’s the man with the megaphone?” . . . “Aren’t there any grownups at all?” “I
don’t think so.” The fair boy said this solemnly, but then the delight of a realized
ambition came over him. (Golding, 1959, p. 7)
“Harry, I owe you an explanation” said Dumbledore . . . “Youth cannot know how age
thinks and feels. But old men are guilty if they forget what it was to be young . . .“
(Rowling, 2003, p. 728)
“It is our choices, Harry, that show what we truly are, far more than our abilities.” –
Professor Dumbledore (Rowling, 1998, p. 245).
© Shaheen Shariff, Ph.D.
Enhance Literacies for Adults and Kids
Legal Literacy:
• Embed legal literacy in every aspect of teacher education and
professional development;
• Embed legal literacy in every aspect of curriculum; and
• Inform public policy with attention to the potential for bias and
stereotypical assumptions by judges, prosecutors and law
enforcement – Educate the legal community about realistic
expectations, pressures, and barriers.
© Shaheen Shariff, Ph.D.
Enhance Literacies for Adults and Kids
Digital and Media Literacy:
Essential to engage all digitally empowered generations (DE Generations)
including adults in a better understanding of:
• Public versus private online spaces;
• Surveillance, voyeurism;
• Ownership of online content;
• Potential legal risks – defamation, criminal charges
Revisit the legal standards we impose on kids and accept from adults.
Work with and learn from digitally empowered kids (DE Kids)
Embed in every aspect of school curriculum.
© Shaheen Shariff, Ph.D.
Defining the Lines: www.definetheline.ca
PRIMARY OBJECTIVE: LEGAL LITERACY FOR STAKEHOLDERS
• Use media (videos, games, online apps, develop their own apps and perspectives on
how they define the lines on androcentric, misogynist, discriminatory roots - sexism,
homophobia, etc.
• Make curriculum relevant http://www.youtube.com/watch?v=dGCJ46vyR9o
• http://www.youtube.com/watch?v=aXV-yaFmQNk [Baby] – Start early
• http://www.youtube.com/watch?v=3EN8lbuBTWE&sns=em [Aruba] – recognize
some children’s lived realities – foster resilience.
• Dialogue with kids and raise awareness of impact of their words.
• Address adult mindsets on use of technologies (Lankshear & Knobel, 2007).
© Shaheen Shariff, Ph.D.
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.
© Shaheen Shariff, Ph.D.
Proactive Objectives?
• Develop capacity (among adult stakeholders and kids) to understand the
impact of their expressions, AND when they cross the line to break the law.
• Bring kids, police, technology corporations and media together to dialogue.
• Involve students, teachers, librarians and parents directly in developing and
delivering (as well as receiving) information, skills and approaches on rules of
technology use, conduct and respect for privacy (QUESBA Task Force
Report).
• Empower young people to become active agents in raising awareness among
peers and stand up to bullying e.g. empowering girls program, Virginia and
Facebook support in rave case.
© Shaheen Shariff, Ph.D.
Policy Approaches on Digital and Social Media
PROTECTION OF
PRIVACY
Substantive law
Not Big Stick
Balance free
Speech, Privacy
AND ------------
OWNERSHIP
ACCOUNTABILITY
ENGAGE TEENS IN CRITICAL
ANALYSIS & AGENCY
RAPS, JOKES, SCENARIOS
WHICH POSTINGS
MICHT RESULT IN LIABILITY?
RIGHTS
Define the Line
Reduced Safety
Platform for
Cappers, Trolls
Blanket Laws
Ignore Teens Agency
Ignore Variables
Sensational Media
Misinformation
Too many “experts”
Moral Panic
Confused Liability
Sustained negative
environments
© Shaheen Shariff, Ph.D.
NORMS SUPPORTING
DEMEANING
JOKES, RUMOURS,
INSULTS, ABUSE,
- SUSTAINED
L
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