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 sexting” so 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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