Wednesday, 13 January 2016

CYBER BULLYING: Can it be stopped?                              

In 2007, I gave a speech in Seville Spain on cyber bullies. I knew even then when I gave that speech that cyber bullying was a crime and that it would be very hard to stop.

This crime is the act of emotionally harming or harassing people via Internet networks in a deliberate one-time occurrence or in a repeated manner. According to U.S. Legal Definitions, "cyber-bullying is the posting of rumors or gossips about a person in the Internet bringing about hatred in other people’s minds; or it may go to the extent of personally identifying victims and publishing materials severely defaming and humiliating them. Cyber bullies can harass on the internet because they feel in complete control and anonymous. They are not always anonymous as many are traced.

Professor MacKay of Dalhousie University said,  “Cyberbullying poses a particular challenge to the community because it happens in a sort of "no man's land". The cyber-world is a public space which challenges our traditional methods of maintaining peace and order in public spaces. It is too vast to use traditional methods of supervision. It easily crosses jurisdictional boundaries. It takes place 24 hours a day, seven days a week, and does not require simultaneous interaction for communication to take place. If we continue to rely on traditional methods of responding to bullying, these challenges will be too daunting.” unquote

 The most difficult age to cope with cyber bullying is the early teenage years. These teenagers want to present themselves as being acceptable among their peers. When some cyber bully comes along and spreads untruths about a teenager, their friends are the first ones to jump upon the untruths and believe everything they read. This is when their friends begin shunning the teenage victim.

Of course, victims of such postings can sue the person who publishes such defamation if the posting is defamatory. They can even ask a court to order cyber bullies to take their postings down and even go so far as to order that those persons to not be connected to the Internet for a period of time. That would mean not even using a public computer or that of a friend hat is connected to the Internet.                                                                                    

But can a cyber bully face criminal charges, especially if his or her victim commits suicide as a direct result of the cyber bully’s posting? Fifteen states across the United States have set laws in place making cyber bullying a crime. This crime includes attacks made electronically e that is done for the sole purpose of coercing, harassing and intimidating.

 In 2006, a 13-year-old girl fell victim to cyber bullying.  In this case, her friend’s mother lied on the internet about the girl’s profile. The mother of this victim’s friend wanted to gain trust in the victim for the sole purpose of finding out what the victim was saying about her daughter. This mother became ferocious in her communications on the Internet and the 13-year-old eventually committed suicide.  No one believes that this was the intention of this mother to see this girl die however, the mother was responsible for pushing this girl to at the state of mind where the girl felt that suicide was her only way out.

This 13 year old apparently had low self-esteem and was taking prescribed medication at the time she died. Her friend’s mother posed as a cute boy and quickly befriended the girl. They formed a bond in one month. The girl received an email from the boy, and he told her his name. He told her he lived close by, was home schooled and was 16 years old. The boy promised her an online friendship. Connecting via the telephone for the girl and her new friend was out of the question as he said his parents did not have a phone, so the two continued to email each other.

The girl’s mother saw some red flags and contacted the police to see if they could trace who this supposedly 16-year-old boy was, and they said they could not do that. I can only presume that the police considered the complaint as a civil matter rather than a criminal matter.

 It was not too long before the “boy” started to write insults and questioned the girl’s integrity. He told her that their friendship was in question because he had heard she did not treat her friends well. Soon messages began to be electronically posted about the girl’s appearance and character on the social networking site.

While the girl could not understand why this was happening to her and why her new friend was posting such hurtful things for all to see. Comments continued to be cruel and upsetting to the 13 year old who already had a low self-esteem and history for depression. This devastated the girl so much that she hung herself. Her mother, found her daughter still alive, but the girl died the next day in the hospital.

A month after the girl’s death, her parents learned that the 16-year-old boy never existed. Her parents learned from another mother that a mom in their neighborhood created the 16 year old and was the one ultimately responsible for the girl’s death. Alas, the police couldn’t charge the woman with any crime.

Tyler Clementi was a college freshman and he was also a victim of cyber bullying. He jumped from George Washington Bridge to his death.

Jessica Logan sent a nude photo of herself to her boyfriend. This nude photo ended being sent around her school. Jessica ended up committing suicide due to the humiliation and embarrassment that she could not cope.

Sarah Lynn Butler Sarah was a popular seventh grader and voted Queen at her school’s fall festival. She was teased at school so much, and posts were made of her on MySpace that she committed suicide.

A 15-year-old immigrant, Phoebe Prince living in Massachusetts committed suicide by hanging herself because she was cyber bullied. She could not handle the harassment.

Hope Witsell, a 13 year old in Florida sent to a boy she liked a nude photo of herself. The photo ended up in other students hands. This started a series of name-calling and serious cyber bullying. Hope ended up committing suicide, as she could not handle the pressure.

Rachael Neblett committed suicide after falling victim to threats through cyber bullying. She was a 17-year-old student in Kentucky.

These are just a few of the victims who killed themselves because uncarying cyberbullies harried them to death.

The province of Nova Scotia in Canada decided that something had to be done about the scourge of cyber bullying.

Rehtaeh Parsons  was a 17-year-old Cole Harbour District High School student. She attempted suicide by hanging on April 4, 2013, at her home in Dartmouth, Nova Scotia, Canada, leading to a coma and the decision to switch her life support machine off on April 7, 2013.

The suicide of this young woman was a terrible incident reportedly related to sexual humiliation and bullying.  Her death has been attributed to online distribution of photos of an alleged gang rape that occurred 17 months prior to her suicide in November 2011. In that month, Rehtaeh. then 15, allegedly went with a friend to a home in which she was reportedly raped by four teenage boys. The teenagers were drinking vodka at a small party. Parsons had little memory of the event, except that at one point she vomited, while a boy was allegedly raping her. The incident was photographed and the photo became widespread in Parsons's school and town in three days. 

Soon afterwards, many in school called Rehtaeh a “slut” and she received text messages and Facebook messages from people requesting to have sex with her. The alleged rape went unreported for several days until Parsons broke down and told her family, who contacted an emergency health team and the police.

Rehtaeh 's mother blamed the four boys who allegedly raped and released images of her, the subsequent constant “bullying and messaging and harassment”, and the failure of the Canadian justice system, for her daughter's decision to commit suicide.

According to a RCMP (Royal Canadian Mounted Police—federal police) report, in March 2013, six boys, including some of Rehtaeh's accused rapists, had an angry argument with three other boys. One of the three boys, who was a friend of Parsons, was stabbed and treated for a non-life-threatening injury.

A year following the alleged rape, the RCMP  concluded an investigation stating, that an investigation into an earlier sexual assault was completed, and in consultation with the Crown prosecutor, there was insufficient evidence to lay criminal charges.

According to dead woman’s family, the boys were not questioned and their phones were not reviewed for the photograph of the rape in progress. Instead, the police called it a "he said, she said" case and also decided the photo was not criminal in spite of Rehtaeh being a minor. Likewise, there were no arrests for the March 2013 stabbing incident.

This doesn’t surprise me and a great many people in Canada. The RCMP in Nova Scotia and elsewhere in Canada are well-known as being inefficient and racist. Chief Superintendent Dennis Daley, acting officer in charge of Halifax District RCMP later said, “In terms of those mistakes and shortcomings directly related to police, we apologize and remain committed to addressing the issues and recommendations so that we continue to progress. However, I would be less honest if I didn’t mention that the Crown prosecutor’s “misunderstanding of the law” stalled the police investigation into the alleged rape of Rehtaeh Parsons and doused any possibility of early charges in the case of the bullied Nova Scotia teen.

The file was effectively closed. Five months after receiving the news that police would not lay charges against her alleged rapists, Rehtaeh attempted suicide and died three days later. A day after her daughter’s death, Leah Parsons received a Facebook message from one of the teens involved in the alleged rape. She passed it along to the RCMP. On April 12, the RCMP announced the case was being reopened in light of "new and credible information that they said did not come from the Internet. Hey, dummies. Facebook is in the Internet.

After a one-year investigation, Det. Constable Snair and her superiors at Halifax Regional Police were confident they could lay child pornography distribution charges against two teens, and a child pornography possession charge against a third. They were less sure about a sexual assault charge, and consulted the Nova Scotia Prosecution Service, where they received some galling advice. Not only was a sexual assault charge not advisable, but, according to junior Crown prosecutor Peter Dostal, who had consulted with Craig Botterill, the senior Crown responsible for child pornography and child cyber offences, the prosecution service was not willing to proceed with child pornography charges, either. The province eventually brought in a prosecutor from Ontario who recommended two child pornography charges, which led to guilty pleas.

In September 2014, one of the boys, by then 20, pleaded guilty to a charge of making child pornography in relation to the photo of Rehtaeh. Citing the offender's age at the time of the crime, and Canada's Youth Criminal Justice Act, the Crown had advised the Judge that the only possible penalties in this case were either probation or a conditional discharge. In November 2014, the first defendant to plead guilty was sentenced to a conditional discharge with 12 months' probation. With a conditional discharge, his criminal record will not show a conviction in this case, unless he breaches the terms of his probation.

Also in November 2014, a second person was charged who was then 19. He pleaded guilty to a charge of distributing child pornography, in relation to the photo of himself and Rehtaeh Parsons. He was sentenced on January 15, 2015 to one year of probation, and required to submit a sample to a DNA database. In an unusual move for a case involving minors convicted of a crime, the judge ruled that this conviction would be kept in his criminal record for a period of 5 years.

I know what you are thinking. Why wasn’t he charged with raping Rehtaeh Parsons? Unfortunately, if the matter went to trial, the only person who could testify that the sex act wasn’t consensual would be Parsons and she was dead.

Following the suicide, Rehtaeh Parsons's mother, Leah Parsons, went public with the story and started a memorial Facebook page called Angel Rehtaeh.  The blog of Rehtaeh’s father, Glen Canning, also went viral. The story drew international attention and sparked outrage on the Internet.

Canadian Prime Minister Stephen Harper commented on the case, saying he was "sickened" by the story and that the online bullying was "simply criminal activity."

Rehtaeh's funeral on April 13 was attended by 500 people, including Nova Scotia Premier Darrell Dexter, who said he came "first and foremost as a father trying to imagine what kind of incredible, unfathomable grief could be visited upon a family.

Rehtaeh Parsons's suicide and the circumstances surrounding it have been compared to those of British Columbian Amanda Todd  and with Audrie Pott, a fifteen-year-old girl from Saratoga, California, United States, and appear to show highly similar characteristics. New laws are being considered after these events. 

Rehtaeh Parsons has been described as a “victim of sextingso in response to her suicide and the fact that there was a public petition with 300,000 names calling for new legislation, Nova Scotia enacted a law in August 2013 allowing victims to seek protection from cyberbullying and to sue the perpetrators. It is called the Cyber-Safety Act.  

Nova Scotia's anti-cyberbullying law recently faced a constitutional challenge in court with respects to arguments on whether or not it violates the Canadian Charter of Rights and Freedoms. Halifax lawyer, David Fraser asked the Supreme Court of Nova Scotia to hear the charter challenge of the Cyber-safety Act, arguing the legislation is so vague and broad that cyberbullying could be considered anything online that hurts somebody's feelings.

Fraser is representing Robert Snell, who was charged under the Act after posting comments on social media about a former business partner, Giles Crouch. Crouch was granted a protection order under the new law, which prevents Snell from communicating with him.

After the judge ruled that Snell had engaged in cyberbullying and the protection order was justified, Fraser told the court that the law is an unreasonable and unjustified infringement of freedom of expression rights. While the Cyber-safety Act may be useful in circumstances of urgency or great risk, Fraser says it violates two sections of the charter such as; Section 2b: Everyone has "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication and Section 7: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Fraser said these violations can lead to sweeping restrictions that can infringe on a person's freedom of speech.

Crown attorney Debbie Brown, appearing on behalf of Nova Scotia's attorney general, defended the Act. She said given the nature of cyberbullying and how quickly messages can spread online, it's necessary to protect a complainant against potential retaliation from a bully by allowing the victim to seek an order against their tormentor before a justice of the peace without giving notice.

The judge in his ruling said in part, “Cyberbullying is a destructive phenomenon. By its nature, it involves the use of electronic platforms and methods that pose serious challenges for the law.

The judge said, “The Attorney General says that the impugned provisions do not violate s. 2(b) of the Charter because communications that come within the definition of cyberbullying" are, due to their malicious and hurtful nature, low-value communications that do not accord with the values sought to be protected under section 2(b).  The Respondent submits that the nature of the expression and its proximity to the core of the Charter values are not relevant at this stage.” unquote

The Supreme Court of Canada in Irwin Toy,  affirmed that any activity that conveys or attempts to convey meaning is constitutionally protected expressive activity such as all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream" are deserving of Charter protection. The only type of expression that receives no Charter protection is violent expression.

Actually, hate propaganda, defamatory libel, and publishing false news have all been found to fall within the ambit of section. 2(b).The Supreme Court of Canada stated in part; “Criminal liability should not be based on a person’s political, religious or ideological views. The police should not target people as potential suspects solely because they hold or express particular views.  Nor should the justice system employ improper stereotyping as a tool in legislation, investigation or prosecution.” unquote

I should point out that advocating rebellion or terrorism or any criminal activity is not protected by section 2b of the Charter. The question before the court was; “Can anyone deliberately publish anywhere, including on the Internet, falsehoods about someone else that will embarrass that person unfairly?  I hardly think so. Can anyone also publish pictures on the Internet of persons who are nude without their permission? I hardly think that is legal especially when it is done maliciously and for the purpose of causing emotional pain to the victim. In my respectful opinion, I don’t believe that section 2b of the Charter extends to that kind of conduct. 

That specific section guarantees; freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication (including the Internet).

Years ago, I was sued for $5 million dollars because I gave my opinion about a business woman in my blog—an opinion that was indeed insulting and embarrassing to her. Alas, she had no real case against me as the Supreme Court has clearly stated that giving one’s opinion, no matter how insulting or embarrassing it might be, is not defamation.

The judge in the Snell case said in part, “Assuming the Cyber-safety Act to be Charter compliant, I had no difficulty concluding Mr. Snell had engaged in cyberbullying of Mr. Crouch as that term is defined in the Act, and that the behaviour was likely to continue.  I am therefore satisfied the Protection Order should be confirmed.” unquote

He also said, “It is clear malice means acting with culpable intent.  Yet the statutory definition of cyberbullying includes conduct where harm was not intended, but ought reasonably to have been expected.” unquote That would certainly apply in the Parson’s case.

The judge then said, “ I will now proceed to examine the constitutionality of the Cyber-safety Act, and in particular, whether the definition of cyberbullying at s. 3(1)(b) and the protection order process set out in Part I infringe ss. 2(b) or 7 of the Canadian Charter of Rights and Freedoms (the “Charter”).  If any part of the Act is found to violate the Charter, I must consider whether the offending provisions are saved by section 1.  Based on the results of this analysis, the fate of the Protection Order remains to be determined.” unquote

The judge also said, “The Attorney General submits that the effect of the Act is to limit harmful expression only after review by a Justice of the Peace or a Justice of the Supreme Court, and only upon issuance of a protection order.  This is not, the Attorney General says, the type of effect which is contrary to the Charter.  The Attorney General further submits that the type of speech in question is far removed from the core values, because it is nothing more than malicious personal attacks on an ex-business partner with the intention of harming him.  The Attorney General argues that if the communications in question are harmful to Mr. Crouch, that type of expression is far removed from the core values sought to be protected by section 2(b).  The Attorney General likens the communication to defamation or hate speech, and says that this Court must balance this low-value expression with the Applicant's right to protect his reputation, which has been described as a fundamental value.” unquote

He also said, “With respect, I find this approach, which confines the analysis to only the expression at issue in this case, to be too narrow.  I must consider all the types of expression captured by the Act. The Act restricts "any electronic communication through the use of technology … that is intended or ought reasonably be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person's health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way".  It is not difficult to come up with examples of expressive activity that falls within this definition and at the same time promotes one of the core freedom of expression values.” unquote

Section 1 of the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Obviously, the constitutional rights and freedoms are not absolute. They can be limited as long as the limit is prescribed by law, reasonable, and demonstrably justified in a free and democratic society.

The party seeking to uphold the limitation—in this case, the Attorney General—bears the onus of proof.  The presumption is that the rights and freedoms are guaranteed unless the party invoking section 1 can bring itself within the exceptional criteria which justify their being limited. 

The framework for determining whether a constitutional infringement is reasonable and demonstrably justified was laid out by the Supreme Court of Canada in Oakes.  First, the objective of the legislation must be pressing and substantial.  Second, the means chosen to attain this legislative end must be reasonable and demonstrably justified in a free and democratic society.  This means: (1) the measures chosen must be rationally connected to the legislative objective; (2) the measures must impair the Charter guarantee as little as possible (minimum impairment); and (3) there must be proportionality between the deleterious and salutary effects of the chosen measures.

The following passage is from Peter Hogg's Constitutional Law of Canada:

“It is a principle of fundamental justice in Canada, and of due process in the United States, that a statute is "void for vagueness" if its prohibitions are not clearly defined.  A vague law offends the values of constitutionalism.  It does not provide sufficiently clear standards to avoid arbitrary and discriminatory applications by those charged with enforcement.  It does not provide reasonable notice of what is prohibited so that citizens can govern themselves safely.  Indeed, as American judges have noted, a vague law may lead citizens to steer far wider of the unlawful zone than they would if the boundaries are clearly marked. In Canada, the idea that a law may be void for vagueness is also implicit in the requirement that a limit on a Charter right be prescribed by law.  That follows from the rule described above that precision is one of the ingredients of the prescribed-by-law requirement.” unquote

The Supreme Court of Canada in Irwin Toy articulated the following standard:

“Absolute precision in the law exists rarely, if at all. The question is whether the legislature has provided an intelligible standard according to which the judiciary must do its work. The task of interpreting how that standard applies in particular instances might always be characterized as having a discretionary element, because the standard can never specify all the instances in which it applies. On the other hand, where there is no intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances, there is no limit prescribed by law.” unquote

The judge then said; “I have yet to consider whether the definition of cyberbullying is overbroad.  With respect to vagueness, I find that the definition of cyberbullying is sufficiently clear to delineate a risk zone.  It provides an intelligible standard.  Therefore, the definition of cyberbullying is not void for vagueness. However, I have difficulty with the second branch of s. 8, which requires there to be reasonable grounds to believe the respondent will engage in cyberbullying in the future.  The Act provides no guidance on what kinds of evidence and considerations might be relevant here.  The Act provides no standard so as to avoid arbitrary decision-making. It is impossible to know on what basis the Justice of the Peace concluded that the Respondent was likely to continue with the alleged cyberbullying.  I can assume that his conclusion was based on the number of instances of alleged cyberbullying in combination with Mr. Crouch's sworn statement.  However, it is not clear how Mr. Crouch's statement indicates that the Respondent's conduct is likely to continue.  Further, it will not be every case that there are multiple instances of alleged cyberbullying.  The definition of cyberbullying says the electronic communication will be typically—but not always—repeated or with continuing effect.  A protection order may be granted based on a single instance.  

The judge summed up by saying; “In this regard, I find that the Act provides no intelligible standard according to which Justices of the Peace and the judiciary must do their work.  It does not provide sufficiently clear standards to avoid arbitrary and discriminatory applications.  The Legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances.  There is no "limit prescribed by law" and the impugned provisions of the Act cannot be justified under section 1.” unquote

The government of Nova Scotia has two alternatives. They can appeal this case to a higher court or alternatively, rewrite the Act so that it meets the expectations of the judge who made the decision. It seems to me that the latter alternative would be quicker.

The matter with respect to Rehtaeh Parsons has already been dealt with so the ruling what have an effect on the outcome of that particular incident. It might have an effect on any new cases however in Canada.

In the United States, cybercrimes are the focus of legislation adopted at both the state and federal levels. I don’t intend to quote them in this article.

I hope you have enjoyed this lengthy article and found it interesting. 

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