How to stand up to a 21st-century problem when society has yet to catch up
By Karen Gross / Illustration by The Heads of State
From the Fall/Winter 2013 issue of Nexus.
Even now, three years later, Amy Dyson's voice cracks when she recounts her daughter's victimization online at the hands of a couple of girls who studied ballet with her in an intensive after-school program. The serious, shy Grade 9 student knew a lot more about Bach than bullies at the time, and had no interest in social networking. Yet the teen was forced to learn about bullies and Facebook very quickly, after an athletic injury caused her to miss several ballet practices.
"You can be cyberbullied when you're not even part of the cyber-world," says Dyson, still seemingly astonished by what happened to her then-14-year-old child. The girl's alleged friends had gone online and maliciously accused her of faking her injuries. But the meanness didn't end there. "She was sitting at lunch at school, and her friend showed her this Facebook page and two other ballerinas were saying really nasty things about her. One of them said, 'What a bitch,' and the other one said, 'I want to rip her head off'."
If that seems over-the-top or unbelievable to you, it did to the Dysons as well. They had their daughter take a screen shot of the offensive conversation, before the girls could delete it. They approached the perpetrators' parents and the ballet school. The girls were forced to apologize and the ballet teachers admonished the class. But that was all. "In retrospect, the ballet school was the real problem," Dyson says. "They fostered a really negative atmosphere and they didn't really know how to react."
It’s not surprising the owners of a small ballet school in San Diego did not know how to react to this newfangled and sinister form of an age-old problem, given that legislators, educators, social policy and youth advocacy experts across North America have been struggling with it for years, and have yet to effectively tame the beast in any kind of comprehensive way. Spooked by the tragic suicides of Canadian teenagers, including Amanda Todd, Rehtaeh Parsons, Jenna Bowers-Bryanton and Jamie Hubley, adults are becoming increasingly anxious. Their job is to protect children and keep them safe, but they seem stumped in the face of this pervasive, insidious threat.
"The problem with this new kind of technology, these online threats and intimidations, is that it follows the students home," says Eric Roher, adjunct professor at the Faculty of Law and partner at Borden Ladner Gervais LLP, where he serves as national leader of the firm's education focus group. "Social media is the oxygen that students breathe. They're on Facebook all the time. They're constantly tweeting and texting."
It's the stuff that's being tweeted and texted, Instagrammed and instant-messaged that can and often does make its targets miserable. A 2010 study led by Faye Mishna, professor and dean of the Factor-Inwentash Faculty of Social Work at the University of Toronto, found that almost 50 percent of students surveyed reported they had been victims of cyberbullying, though most had not told anyone about it. The same study revealed that more than a third of those surveyed said they had bullied others online.
But the line between a joke gone too far, and intentionally harmful harassment or threatening behaviour, can be unclear, at least in a strictly legal sense. And when an incident becomes sexualized, it moves into an entirely different realm. In the Rehtaeh Parsons case, a photo of her allegedly being gang-raped when she was 15 was circulated on the Internet. Her mother says that after months of being bullied and humiliated online, Parsons attempted suicide and was taken off life support several days later. Police said there wasn't enough evidence to charge anyone with sexual assault, but more than a year later they charged two young men with distributing child pornography.
Parents often have no idea what their own children are up to, and when they find out, Jones says they are usually incredulous.
But what happens when, for example, intimate photos that two young lovers may have shared consensually in happier times go viral after they break up? Should someone be charged with a criminal offence? Not realistic, argues Brenda Cossman, LLB 1986, law professor and director of U of T's Bonham Centre for Sexual Diversity Studies.
"I don't want to say it's never appropriate," she says. "But for the really common scenarios of sexualized cyberbullying, child pornography laws are not the way to go at this. It's like trying to attack a really complex problem by shooting a tank at it."
Andrea Slane, JD 2003, agrees there are no easy answers for such weighty issues and says, like the Internet itself, the laws pertaining to it are still works in progress. An associate professor at the University of Ontario Institute of Technology in Oshawa, Slane's areas of research include privacy and sexual harm, as well as sexualized cyberbullying. The distribution of sexual images without consent violates personal privacy in addition to potentially violating child pornography laws. “People who gain access to images that the subject did not intend them to see, should ask themselves, ‘What does this image actually mean to me? What does it mean to the person in the picture?’,” she says.
But under increasing pressure from the public and provincial legislators, and faced with what seems like an onslaught of cyberbullying stories with awful outcomes, the Harper government is taking unprecedented legal steps. In the October Speech from the Throne, it introduced cyberbullying legislation that would, among other things, ban the non-consensual distribution of intimate images, commonly known as revenge porn. Several provinces, including Ontario, Quebec, Alberta and New Brunswick have already amended their Education Acts to target various forms of online harassment. And in the wake of Rehtaeh Parsons' death in April 2013, Nova Scotia adopted the Cyber-Safety Act, which defines cyberbullying as "any electronic communication through the use of technology . . .that is intended or ought reasonably be expected to cause fear or intimidation, humiliation, distress or other damage to another person's health, emotional well-being, self-esteem or reputation and includes assisting or encouraging such communication in any way.”
Abby Deshman, JD 2008, director of the public safety program at the Canadian Civil Liberties Association, thinks it’s likely that Nova Scotia's law will be challenged because aspects of it are very vulnerable to being struck down as unconstitutional. "Basically, its definition could catch just about any negative online speech and it's not limited to students," she argues. "An editorial that's written in a newspaper and published online, political cartoons that could reasonably expect to cause damage to one's self-esteem—they fall within the definition."
Deshman is also critical of some other aspects of the law, which allow alleged victims to sue perpetrators and holds parents liable if the perpetrator is under the age of 18. The legislation can also force perpetrators, no matter what their age, to identify themselves publicly, while the names of the accusers may not be published. "I don't necessarily have a problem with publication bans for the accuser," she says. "It's the assumption built in that one person definitely needs protection, and the other needs public shaming and punishment, when really often these are both young people who need protection."
That concern that all children need compassion and protection, including the alleged bullies, is shared by many child and youth advocacy experts. Rosemary McCarney, president and CEO of Plan Canada, points out while other countries have national action strategies on violence against children, Canada does not. "It worries me that we think of cyberbullying as a unique category of violence against children," she says. "We're missing the bigger picture."
Plan Canada's latest report, A Girl's Right to Learn without Fear, produced in partnership with the Faculty of Law’s International Human Rights Program, looked at school-related gender-based violence around the world. The report uncovered some troubling statistics. Among them, nearly a quarter of Canadian girls and at least 15 percent of boys have experienced sexual violence before they reach 16. And on a list of 35 comparable countries, the World Health Organization ranks Canada 27th—among the worst—for its bullying victimization rates among 13-year-olds. Separately, a national survey found 28 percent of LGBTQ kids have been victims of cyberbullying and two thirds say they feel unsafe at school. And this information, McCarney argues, is not nearly comprehensive enough.
"One of the things holding us back in Canada is the lack of data," she says. "There's underreporting on children's experience of violence. We really need a strong evidence-based approach to this so we can get the right investment on the prevention side in particular."
While legislation may be useful in extreme cases, McCarney and others are adamant that a holistic approach—which starts with education, support and prevention in the schools—will ultimately lead to less bullying in-person and online. By the time a child commits suicide, it's clearly too late.
"You don't legislate empathy," says Faye Mishna, one of the country's leading experts on the subject. "You teach empathy in the schools. You develop a climate where kids are empowered to stand up for others who are being bullied."
Jane Bailey, LLM 2002, agrees. The associate professor at the University of Ottawa law school researches cyberbullying and co-directs The eGirls Project, which documents girls’ online experiences. “We need to focus on proactive approaches but I worry they’re the ones most likely to be overlooked because they’re not short-term solutions. They’re long-term solutions. And in many ways, they get right at the issues that are reflective of social problems that we’ve known about for a very long time, and we’re now seeing them reflected in the mirror of technology.”
One prevention model that has been put into practice successfully is at Forest Hill Collegiate Institute, a public high school in central Toronto. Before students even enter high school, there are Grade 8 visits and a parents' evening, during which the principal discusses school safety and the intelligent use of electronics and technology. Incoming ninth graders hear the message again during opening assemblies, where social networking is highlighted as a tool that should never be used to hurt or embarrass another person. There is a Grade Nine leadership day when Toronto police come in and hold a seminar on street-proofing and how to avoid bullying behavior in the cyberworld. For the upper years, a social networking expert with the police department has come in to run presentations on privacy settings, what constitutes an inappropriate online post, and to offer students practical resources and contact information for support in case they run into trouble.
In the more than two years that Geoffrey Vanek has served as a vice-principal at the school, he has only had to deal with two specific cases involving cyberbullying, which he says often begins with a face-to-face joke. "Then the joking moves into the cyberworld where they might be texting on their phones," he continues. "The distance the electronics create often causes problems because of the way things are written. People get sloppy with their language and this will often exacerbate a situation."
Amendments to Ontario's Education Act have given school authorities more power to discipline, suspend and expel students who engage in online bullying behaviour, even if it originates off-campus. Vanek says at Forest Hill they have defused heated situations in some cases through mediation with a social worker. The kids involved are asked to sign a contract that demands mutual respect. And the parents are contacted and made to understand that their involvement is essential. The bully, the victim, and the bystanders are all included in the discussion.
"Can it be legislated out of existence?" Vanek wonders. "The legislation is there and it can be helpful, but I think the real manner with which the issue will be dealt is through education: following the Golden Rule. Don't do anything to someone else that you wouldn't want done to you."
While the message may be resonating at Forest Hill Collegiate, in suburban Scarborough, where Brock Jones, JD 2004, works as an assistant crown attorney, cases related to online bullying seem to be on the upswing. Jones, who is also co-director of the youth justice team, is primarily responsible for youth prosecutions. In order for a case to make it across his desk, there needs to be an explicit criminal element and he is seeing a surprising number of them. One in particular involved three teenage girls who were relentlessly victimizing another girl at their school.
"They confronted her and beat her up in a locker room and tried to force her to swallow some gum that another girl had chewed and called her all these terrible names," Jones says. "One of them filmed it on a cellphone and posted it on Facebook where of course it spread like wildfire, with a lot of nasty descriptors calling her a slut." The girls were charged with assault and criminal harassment, but the case may never have even made it to Jones' office, if an unrelated parent hadn't eventually seen the video online and reported it to the school. Parents often have no idea what their own children are up to, and when they find out, Jones says they are usually incredulous.
"I have all but seen someone's jaw drop right in front of me," he says. "They can't believe their kid is doing this. When we show them the evidence, there's really no getting around that it happened." Jones wonders whether these teenage perpetrators really grasp how cruel they're being, and he too believes that a concerted effort in the schools would make a real dent in the number of cases that end up in the courts.
As Canada struggles with this modern-day, multi-layered challenge, other countries are doing the same. South of the border, almost every state in the U.S. has adopted some form of legislation aimed at online bullying. Several dozen have enacted laws that specifically ban it. In Florida, two minors were recently arrested and charged with felonies after allegedly harassing a classmate so relentlessly that the girl, 12-year-old Rebecca Sedwick, jumped to her death from a cement factory tower. According to police, the arrests came after one of the alleged perpetrators posted on Facebook that she had bullied the victim and didn't care that she had died.
Because the Internet crosses all geographical boundaries and reaches beyond the school yard, through walls and into children's bedrooms, keeping tabs on who is saying what and on which website has become almost impossible. Certain interactive sites and apps, including Formspring (now called Spring.me), Chatroulette, Ask.fm and Kik, seem to invite online abuse because users can participate relatively anonymously. But Facebook, Twitter and YouTube remain popular among perpetrators too. Setting up a fake account in someone else's name is a choice tactic among tormentors, often used to stalk, harass, and destroy a person's reputation. No one should be surprised by what's going on, says Brenda Cossman. Bullying is an age-old and pernicious problem, and cyberbullying is just the newer, more pervasive model. "It's horrifying that it had to get to the point of teen suicide to take into account things that have had other terrible consequences for years."
But many experts agree that punishing every person who misuses the Internet is not going to work as a viable, long-term solution. Says Jane Bailey: “I think law is a potential instrument of social change but we need to think very clearly of legal responses as components of an overall strategy.”
Ask Plan Canada's Rosemary McCarney what she would like to see and it's this: a bold, strategic, data-driven policy that focuses on education and prevention, involves all levels of government and crosses a variety of different sectors. "We can't just react to and respond to bullying, whether it's sexual, physical or psychological," she says. "It's interrelated. And our solutions have to be interrelated as well."
Additional reporting provided by Lucianna Ciccocioppo.
The Faculty of Law’s Centre for Innovation Law and Policy, together with the Factor-Inwentash Faculty of Social Work, hosted a conference in May 2013 on this issue, called: “Clicks and Stones: Cyberbullying, Digital Citizenship and the Challenges of Legal Response. Prof. Faye Mishna and Adjunct Professor Eric Roher moderated panels, and alumnae Professors Jane Bailey and Andrea Slane were among the presenters.