Back in the early, dial-up days of the Internet, bullying expert Bill Belsey of Cochrane, Alta., noticed a disturbing trend of online abuse among teens and coined a term for it: “cyberbullying.”
The first country to name the problem, Canada will also be among the first to address it in law. Following a ghastly roll call of cyberbullying-related suicides over the past year – Amanda Todd, Rehtaeh Parsons, Todd Loik – the federal government used this week’s Speech from the Throne to announce its intention to fight back.
“The government will introduce legislation giving police and prosecutors new tools to effectively address cyberbullying that involves criminal invasion of privacy, intimidation and personal abuse,” it announced. “This legislation would create a new criminal offence prohibiting the non-consensual distribution of intimate images.”
The parents of victims who lobbied for change will draw some comfort in the measure, as may parents in general: It’s a shrewd enticement for Ottawa to throw into its middle-class loot bag.
But criminologists, psychologists and bullying experts are convinced that this announcement, in the works for almost a year, is more political sop than preventive measure. They also argue that this law-and-order measure could create legal bedlam.
Among their chief concerns is the worry that the term “cyberbullying” is used too loosely and may cast too wide a net. Many provinces have anti-bullying measures in place, and existing criminal and tort laws already deal with some of the related crimes, namely harassment and assault.
Another tricky issue is the law around photo-sharing. There is a roiling debate about whether teens who disseminate images should be charged with the possession of child pornography.
Compounding the skepticism, Ottawa is not talking to some of the country’s foremost experts about the issue. “I haven’t been consulted,” said Shaheen Shariff, a McGill University-based expert in the cyberbullying field who is also an affiliate scholar at Stanford Law School’s Center for Internet and Society.
Ottawa will be walking on a legal thread, Ms. Shariff said. “This is a question about balancing constitutional law: the right to free expression and the right to safety.”
An imbalance of power
There is general agreement on what constitutes bullying and cyberbullying. Frequency is one factor. The abuse can’t be a one-off: It has to be continuous. “Being called a name once isn’t being bullied,” said Tracy Vaillancourt, a professor of children’s mental health at the University of Ottawa. “Ninety-nine-point-nine per cent of bullying behaviour is repetitive.”
There also has to be an imbalance of power: one victim and several perpetrators. Intentionality is another critical qualifier: The abuser needs to show that he or she meant to harm.
The question for legislators, experts say, is how to narrow the scope of the word. And right now, there is concern that “cyberbullying” is too broad a term, legally speaking. “The law doesn’t like ambiguity,” said Justin Patchin, a cyber-criminologist at University of Wisconsin-Eau Claire. “There has to be a cutoff point. Cops can’t get involved in every instance of cyberbullying.”
If Ottawa sticks to that term, police will have their hands full. Several major surveys indicate that as many as one-third of kids have been bullied online. More conservatively, a 2010 study of 33 Toronto middle and high schools reported that 49.5 per cent of students said they had been cyberbullied; a year later, the Nova Scotia cyberbullying Task Force Online Survey found that 60 per cent of students had been bullied.
While the crime is hard to define in a single word, being the victim of cyberbullying is not an ethereal experience. Data suggests that virtual abuse inflicts a more heightened kind of torment than its real-world counterpart. Social media give bullies a vast, virtual playground that is nearly impossible to police. The threats, false rumours and compromising images are dark, digital clouds that follow victims everywhere. Kids often conceal the pain from their parents, who in turn scramble to keep up with all the emotional issues.
“How do you catch it all?” asks Carol Todd, the mother of British Columbia teen Amanda Todd, the 15-year-old girl who committed suicide after posting a candid YouTube video that explained what she had suffered as a cyber-abuse victim. “What do you tell a person who’s been told to hang themselves and that the rope will be provided?”
Leah Parsons, Rehtaeh’s mother, does not think that cyberbullying is the right word. She would rather use the term “harassment” to describe what happened to her daughter. “She became the target, and once that happens it basically tears you down to the core of your being. In a time when you are forming who you are as a person, the social destruction of your very being is at stake.”
Carol Todd echoes the sentiment. “This is about character defamation and social assassination,” she says. “I’d call it cyber-harassment.”
A faceless attack
Despite the criticism, the term’s inventor, Bill Besley, insists on its relevance. “I know I’m not from Oxford; I know how academics drone about the phrase and how it maybe not be useful, but it’s important to use it,” says Mr. Belsey, who came up with the term by combining “cyberpunk” – coined by Vancouver novelist and futurist William Gibson – with “bullying” to convey the emergence of this faceless attack around 15 years ago.
In most ways, he says, online abuse is similar to bullying in that it involves people, power and relationships. But technology, he adds, is an amplifier of what’s good and bad about humanity.
“When we give kids cellphones we are giving them access to the most powerful tools known to mankind,” says Mr. Belsey, who remains a noted expert in the field. “They can overthrow governments. We as adults need to get our heads around the fact that there is no hiding from this. There are real-life consequences to our actions online.”
But other experts fear that criminalizing the behaviour may have the unintended consequence of perpetuating more anti-social behaviour. “More kids end up in both roles,” says Faye Mishna, dean of the University of Toronto’s Factor-Inwentash Faculty of Social Work. “It’s very important to understand that.”
One study from Alberta showed that one-third of students who had cyberbullied had also been victims of it – and both share difficulties with emotions, concentration and getting along with other people, as well as not feeling safe at school. Does punishing these kids make things better, or worse? How do police distinguish between the predators and the preyed upon?
Photo-sharing has its own blurred lines. One target of Ottawa’s new criminalization plan is the distribution of sexual images without the subjects’ consent. But among teens, “consent” is defined with some promiscuity. A recent study found that approximately 40 per cent of teens admitted to receiving a potentially compromising selfie (a self-portrait taken on a cellphone or computer), and more than 25 per cent said that they had then forwarded it to someone else. That means the chances of unwanted dissemination are rising. In that same study, one-third of teens stated that they didn’t think about the legal ramifications or consequences of their actions.
Like other jurisdictions, Ottawa will meet resistance if it equates all photo dissemination to the dissemination of child pornography. A 16-year-old girl from Saanich, B.C., faces charges of possession and distribution of child pornography after she allegedly sent out nude pictures of her boyfriend’s ex-girlfriend. Her lawyer is challenging the charges, saying they are unconstitutional, and that the legislation was aimed at pedophiles, not children.
“If the same conduct was perpetrated by adults, it wouldn’t be child pornography,” Victoria-based lawyer Christopher Mackie says.
The equivalence also speaks to a deeper problem of criminalization: intent. There are varying degrees of it. Some kids deliberately set out to do harm, though they may have no sense of how much harm they are inflicting. Others may do it out of peer pressure. Others harm victims inadvertently by posting a photo or video they didn’t realize would cause pain.
On the extreme end of the intent spectrum, there is this week’s harrowing story from Florida. Polk County police arrested a 14-year-old after she boasted on FaceBook that she didn’t care that she had bullied Rebecca Ann Sedwick and that the 12-year-old girl had killed herself. (Ms. Sedwick jumped to her death from an abandoned silo.) In this instance, authorities could make a clear case for intent.
But that may be a rarity. One study found that least 60 per cent of “digital natives” (kids born in the Internet era) are less sensitive to, or sometimes cannot distinguish between, harmless jokes or teasing and harmful threats, assaults on privacy and persistent harassment. They don’t even know when they are harassing.
Some cyberbullying victims have preexisting emotional issues, and one of the other debates raging in Canada and elsewhere is how much blame can be assigned to the bully in the case of suicide. Last April, New Zealand enacted a cyberbullying law that makes inciting someone to commit suicide punishable with up to three years in jail. A review board in Ireland, which is considering similar cyberbullying laws, decided to separate the issues of cyberbullying and suicide.
Among professionals, there is a sense of legal fatigue around the issue. What if the federal law contradicts a provincial law? And which overburdened enforcement agency is supposed to patrol the Internet superhighway?
“We should look at cyberbullying in the legal terms we’ve already created,” says Ms. Shariff of McGill. “The spreading of rumours, posting photographs without permission. This could come under tort or criminal laws we already have. We don’t need new ones.”
Experts and parents call for grass-roots approaches. Restorative justice comes up a lot. Teenage brains are still forming, and often kids don’t know what they’re doing. Instead of meting out hard justice, let the bully and bullied sit down together, face-to-face.
One mother of a bullied teen who spoke to The Globe says legal remedies won't help; that police won't take complaints seriously. She says parents should instead focus on role-modeling at home. That’s where kids learn how to bully or be bullied, and parents should be more sensitive to it.
Bill Belsey suggests a concept called “netizenship,” in which teens learn how to become better stewards of their digital footprints. He also says teens can sniff out hypocrisy, whether it comes from parents or public figures. “Maybe politicians should stop those attacks ads,” he said. “That’s bullying if I ever saw it.”
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