Bill C-13: The Victims of “Cyberbullying” and Canadians Deserve More
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?
Jane Bailey on AB v. Bragg and Why the “e” word matters
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.
Trevor Milford joins Québec Launch of Media Literacy Week
When we think about literacy, we often think about schools and teachers. But what about Media Literacy? Last week, MediaSmarts teamed up with the Canadian Teachers’ Federation (CTF) to present the seventh annual Media Literacy Week. To launch the event in Québec, Montréal’s Laurier Macdonald High School hosted a panel discussion on November 5th, about Online Privacy. The discussion was broadcast live to students at 33 schools across the province. Following opening remarks by Privacy Commissioner Jennifer Stoddart, eGirls’ very own Trevor Milford – University of Ottawa student researcher extraordinaire – was among the panelists. Along with Daphne Guerrero from the Office of the Privacy Commissioner of Canada, and Colin McKay from Google Canada, Trevor shared his experience and expertise, and fielded some very insightful questions from students. Covering topics ranging from privacy settings to cyber-bulling, the students proved to be media savvy and in tune to the challenges of navigating the public/private divide online. And the best news is, you can watch the discussion too!
PowerPoint slides from Jacquelyn Burkell’s October 24th Lecture at uOttawa
Jacquelyn Burkell presented her research on privacy expectations in online social networks at the Tory Lecture Series in the Faculty of Law, University of Ottawa, on October 24, 2012. Click here to download her PowerPoint slides.