Jane Bailey shares her insights on the recently proposed Bill C-13:
Last Wednesday the federal government introduced Bill C-13, the “Protecting Canadians from Online Crime Act” – a law that is supposed to be about “cyberbullying”. At a press conference Justice Minister Peter MacKay asked, “what wouldn’t you do to protect an innocent child?” Bill C-13, he said was the government’s way of saying to the targets of the “horrible crime of cyberbullying” that “help is available and that hope is everywhere”. The Minister reminded us of the government’s priority to “keep Canadians safe”, “particularly our children”. If this is so, the government has a funny way of showing it. Not only does the Bill fall short in terms of meaningfully addressing “cyberbullying”, it makes even the limited response offered conditional on accepting increased state surveillance writ large.
“Cyberbullying” has become an umbrella term for a wide variety of issues and behaviours – everything from repeated insults about someone’s shoes to invasive attacks on the personhood and identity of those targeted. Given the wide variety of behaviours and consequences involved, it is highly unlikely that one kind of response will even begin to meaningfully resolve the issues. As a result, many people have called for development of a comprehensive national strategy that breaks down the umbrella term to identify more specifically what kinds of behaviours, practices and consequences need to be addressed. Once we know exactly what must be dealt with, we can then develop responses that are designed to address each of the problems we identify.
For example, studies show that those who are seen as “different” are more likely to be targeted by “bullying” and “cyberbullying” behaviours. The kinds of things that make someone “different” include race, ability, sexual orientation and sexual identity. Getting at the root of that kind of “cyberbullying” will require strategies that address underlying issues like racism, ableism and homophobia. In contrast, to the extent that certain kinds of “cyberbullying” situations involve individual behavioural issues, we will need responses that address those individual behaviours, including educational initiatives that teach attackers other ways of behaving. Overall then, a meaningful comprehensive strategy is likely to incorporate a variety of responses, including: policies aimed at inclusion and respect for diversity, human rights education, behavioural approaches, restorative practices and, in some cases, punitive approaches.
While captioned as a response to “cyberbullying”, Bill C-13 addresses only certain kinds of behaviour with criminal sanctions: non-consensual distribution of intimate images, hate speech based on sex, age, national origin and mental or physical ability, and false, indecent and harassing communications using a telecommunications system. A number of these provisions may be of particular relevance for women and girls. Studies suggest that girls and women are more likely to be targeted by online threats of sexual violence and attacks alleging sexual promiscuity than are heterosexual men and boys. Imposing a criminal sanction for this behavior could be understood as a meaningful statement not only about the safety of youth, but about our commitment to gender equality and to minimizing barriers to girls’ and young women’s full participation in our emerging digital society. However, with no commitment to proactive initiatives designed to change prejudices that leave women and girls open to these kinds of attacks, we are left with only reactive criminal provisions. Historically, while criminal law provisions have been a way for the community to make a statement against sexual violence, in practice they have done little to actually change girls’ and women’s vulnerability to it.
While I certainly do not dismiss the potential for criminal prohibition of non-consensual distribution of intimate images as a community statement against this kind of “cyberbullying”, I worry that unless incorporated into a more comprehensive strategy its impact will be more symbolic than real. It would serve us well to directly address the reasons why it is that displays of women’s sexuality or even recordings of acts of sexual violence against women are understood as a way of shaming women. This is particularly perplexing given the mediatized culture that surrounds us with the message that girls and women need to be “sexy”, but only in a limited, predefined way – basically in a way designed to sell them everything from diet pills to cosmetics to plastic surgery and more. Perhaps this too is an activity upon which we should proactively intervene. For example, we might consider what role the online business model that uses our personal information to profile us and then market to that profile plays in perpetuating myths and stereotypes about women and girls, as well as other social groups.
Finally, whatever one thinks of the potential of the new criminal prohibition in terms of meaningfully addressing “cyberbullying”, it is exceptionally objectionable to see the government advancing once again the state surveillance agenda on the backs of the very people the government claims to be most interested in protecting – our children. If, indeed, Bill C-13 is about our vulnerable children, then at minimum we should expect to see these expanded powers tied to the specific provisions that are supposed to protect our children. Can we expect that, as with Bill C-30 (the lawful access bill), an omnibus bill will be used once again to portray those concerned about expanding state surveillance to be unconcerned about the vulnerable in our midst?
If the government actually cares about our children, if they actually care about the equality of those disproportionately targeted by “cyberbullying”, why is it that they have not advanced that agenda on its own? Why don’t we have a bill that addresses gendered hate speech, non-consensual distribution of intimate images and criminal harassment via telecommunications systems without tying it to increased state surveillance writ large? And why don’t we have a commitment to a broader strategy for addressing so-called “cyberbullying” in all of its forms in a way that doesn’t just react to certain kinds of instances with punitive measures, but also takes a meaningful proactive approach to the social and behavioural factors that contribute to the multitude of situations encompassed in the unhelpfully broad term “cyberbullying”? The victims of “cyberbullying” and Canadians as whole deserve more. When can we expect to get it?
When it comes to discussion about cyberbullying, experts attribute responsibility to a range of groups and issues. One group that takes a lot of flak is parents. At best, the story goes, we’re naïve, incapable of understanding our children’s Internet use, and not responding with enough urgency. At worst, we are responsible for our children’s bullying behaviour or victimhood, even the cause of the problem.
In their 2012 study, Cyberbullying in Canada, the Senate Committee on Human Rights heard from numerous witnesses about the shortcomings of parents. Witnesses consistently recommended parent education – primarily about the Internet and cyberbullying. A few witnesses alluded to the fact that parents need support to parent well, but this support was largely framed in narrow terms of bullying education. There was virtually no mention of systemic barriers that may exacerbate the challenges of parenting, or broader social and economic pressures that get in the way of kids’ positive and healthy digital citizenship. Continue reading
Jane Bailey presents at the Senate Committee
It’s possible that, like many Canadians, you had no idea the Federal government was in the process of removing section 13, which provides redress for online “hate messages”, from the Canadian Human Rights Act. Bill C-304 An Act to amend to the Canadian Rights Act (protecting freedom) received Royal Assent on June 26, 2013 after a year of delay in the Senate.
On Tuesday June 25th, three feminist voices were invited to the Senate Standing Committee on Human Rights, to share their expertise in this area. Professor Jane Bailey presented alongside Professor Kathleen Mahoney (University of Calgary) and Jo-Ann Kolmes on behalf of LEAF. Together, these three made a compelling argument that removing section 13 altogether (as a response to its alleged shortcomings), is a retrograde step that widens existing gaps in our human rights protections, leaving some groups especially vulnerable. (For example, women and disabled persons are not protected by Criminal Code hate provisions.) We invite you to read Professor Bailey’s submission and LEAF’s submission to learn more.
Congratulations to eGirls researchers Jane Bailey and Jacquelyn Burkell for their great panel presentation at the “Equality Runs Through It: Group-Based Identity Implications of Bullying and Sexting Discourses” Law and Society Association meeting in Boston on 01 June. You can view the slides from their presentation here!
On Friday May 3, 2013, Professor Jane Bailey spoke at Clicks and Stones, a conference about cyberbullying co-sponsored by the University of Toronto’s Centre for Innovation Law and Policy and Factor-Inwentash Faculty of Social Work. In a presentation entitled “Online sexualized bullying: why an equality analysis matters”, Professor Bailey relied on the Supreme Court of Canada’s decision in AB v. Bragg Communications Inc. as the basis for making two central points: (i) that individually initiated civil litigation offers a very limited opportunity for redressing the harms of sexualized bullying because it is often slow and expensive, and can expose the target to further unwanted and sometimes humiliating publicity; and (ii) that proactive, collective equality-based responses to the misogyny, homophobia, racism, classism, colonialism and typecast gender conformity that frequently inform sexualized bullying are also needed. You can view Professor Bailey’s slides from the presentation here.
Clicks and Stones:
Cyberbullying, Digital Citizenship
and the Challenges of Legal Response
May 3, 2013
9:00 a.m. – 11:45 a.m.
Campbell Conference Facility, Munk School of Global Affairs, 1 Devonshire Place, Toronto, ON.
Governments are reacting to the cyberbullying phenomenon in various ways. In Canada, several provinces and the Canadian Senate have examined the issue in depth. The Standing Senate Committee on Human Rights has made seven recommendations to the federal government, including promoting human rights education and the values of “Digital Citizenship.” At the same time, cyberbullying cases are reaching the courts here and elsewhere, revealing limits to the ability to address the problem with our legal systems. What’s the most effective approach? Join the discussion on May 3, when the University of Toronto’s Faculty of Law and Factor-Inwentash Faculty of Social Work present two panels composed of Canadian and US experts on this important issue (including eGirls’ own Jane Bailey).
Panel 1: Digital Citizenship
Moderator: Dean Faye Mishna, Factor-Inwentash Faculty of Social Work, University of Toronto
- Senator Mobina Jaffer, Chair of the Standing Senate Committee on Human Rights
- Professor Wayne MacKay, Chair of the Nova Scotia Task Force on Bullying and Cyberbullying
- Professor Shaheen Shariff, Department of Integrated Studies in Education, McGill University
Panel 2: The Challenges of Legal Response
Moderator: Adjunct Professor Eric M. Roher, University of Toronto Faculty of Law
- Professor Mary Anne Franks, University of Miami School of Law
- Professor Jane Bailey, University of Ottawa Faculty of Law
- Professor Andrea Slane, University of Ontario Institute of Technology
This conference is free and open to the public, although seating is limited. For more information or to register, please follow this link.
Seems to me it’s getting hard to get through a day without bumping up against cyberbullying. Websites (including our own!), news stories, legislative debates, courtrooms, chatrooms, are all loaded with explorations of the causes, effects and potential solutions to this social phenomenon. Legal responses in Canada have included everything from amending the Education Act in Ontario to specifically address cyberbullying to court proceedings aimed at uncovering the identities of anonymous cyberbullies to proposals to specifically criminalize cyberbullying. Of course, comprehensive responses don’t begin or end with law – education is understood to be critical. But it is easy to fall short on that score as well. Many different websites offer practical preventative tips advising us not to give out personal information and encouraging us to unplug every now and then. While this may be good advice for me, it doesn’t easily mesh with young people’s full integration of “online technologies into their social lives” (as reported by MediaSmarts in their 2012 report Young Canadians in a Wired World III (p. 15)). And, in any event, these kinds of tips always leave me wondering what else we need to be educating ourselves about. Continue reading
You probably heard or read about AB v Bragg in the media. It’s the case about the 15 year old girl who wanted to be able to use a pseudonym (rather than her real name) to pursue an order requiring an Internet Service Provider (ISP) to disclose customer information relating to the IP address from which a fake Facebook profile about her originated. AB went all the way to the Supreme Court of Canada (SCC) and was ultimately granted this right. The analyses at first instance, before the Nova Scotia Court of Appeal and before the Supreme Court of Canada focused primarily on the privacy interests of young people.
On November 21, 2012, in an invited lecture organized by the University of Ottawa Women and the Law Association, Professor Bailey explored the kinds of equality arguments that might have been advanced in support of the SCC’s decision. She considered some of the reasons why equality was not raised and suggested why the absence of the “e” word matters.