"cyber-bullying, cyber-libel or cyber-jokes?"

© Shaheen Shariff, Ph.D.

Cyber-bullying, Cyber-libel or Cyber-Jokes?

Navigating a balance between “public” and “private” online conversations among youth.

Shaheen Shariff, Ph.D.Associate Professor, McGill University

Montreal, Quebec, Canada


Cyber-bullying targeting teachers

A gift from the devil: Worry about on-line activities

Cyber-bullying: The Internet is

the latest weapon in a bully’s

arsenal

Internet gives teenage bullies

weapons to wound from afar

Teacher

s declare

war on

cyber-

bullying

Net Fear: You never know who your friends are

Online menace isn’t “just a joke”: [say] Police

Recent Media Headlines


Profile of an Adult Cyber-bully

David Abitbol (28 years old);Lives at home;

On-line screen-name: “David Darkiller”– Threats against former teachers who he thinks “deserved to

die.”– On-line comments: “Death is the only answer”– Five guns found in his possession, some unregistered– Sleeps with his guns to protect from “elves”– Child pornography found in his room as well as the guns.– Charged with criminal threats, possession of unregistered

firearms and possession of child pornography– Released on bail.


Was “just joking” not dangerous

Abitbol’s lawyer maintained he was not dangerous;

Was simply “joking” and having fun with his friend on social networking;

Not a threat to society if released.


Blurring of Criminal and Social

• A sixteen year-old British Columbia teenage girl was drugged, gang raped, and the rape was filmed and posted on the Internet – it went viral and spread rapidly.

• Actions at the rave were clearly criminal – not as if youth didn’t know it was wrong – rape is a criminal offence.

• Drugging the girl was also a criminal offence.

• Question is – was filming it and putting it on internet a criminal act?


Navigating Blurred Boundaries:Limits of On-line Expression

1. Influence of corporate marketing on tacitly condoning cyber-bullying and/or related forms of harassment.

2. Corporate intermediaries are legally distributors not publishers – minimal responsibility to remove content.

3. What on-line expression is “public” or “private” - can it be both?4. What represents “joking” and “true threats”? (Real versus

perceived harm – subjective or objective privacy harm).5. At what point do “joking” or “white lies” become libelous (cyber-

libel)?6. What are the limits of supervision and responsibility to intervene

when cyber-bullying occurs outside school hours among school-mates?

7. When does law enforcement come in and do the police have an educational role?


Privacy Harm

• Notions of privacy are shifting in adult society and more so with children/youth e.g. social networking, twitter, etc.

• Increasingly voyeuristic society – e.g. recent rape case Pitt Meadows.• Line is blurred between public and private expression.• Law is beginning to define the lines– finding it difficult with rapid

evolvement of technologies.• Young people beginning to perceive and conceive of public and

private very differently – in the next few generations – earlier notions may not exist at all.

• Subjective and objective conceptions of privacy.• Affects moral development – and shifting ethical standards.• Age appropriate moral development starting at young age.


Blurring of Criminal and Social

• Child porn laws are being applied by police but there aren’t any laws developed yet to address this.

• Range of reasons why kids are putting information on the Internet.

• Sometimes might be to inform others – alert to the criminal activity – in this case appears to be the “joke” value for the up-loader.


Corporate Advertising

Advertisements directed at youth sometimes tacitly condone cyber-bullying

Needs to be improved awareness by corporate marketing strategists regarding their influence,

They might sell more mobile phones but also need to demonstrate social responsibility

Consider these ads: Rogers Ad –http://www.youtube.com/watch?v=w9NTJTtexnc

T-Mobile Ad -http://www.youtube.com/watch?v=ClZe0dawFY4


Profiles of Cyber-bullying

1. Peer and Anti-authority on-line expression:– Allows for perceived anonymity, permanence, infinite audience

and participants.

2. Inter alia: Text messaging and social networking sites, bulletin boards, blogs, chat rooms, avatars, Xangas, e-mail, camera cellular phone with recording capacity, sexting nude or semi-nude photos to friends.

3. Anti-authority on-line expression results in more urgent calls for bans on technology and legislative amendments in Canada than peer cyber-bullying.

4. Emerging lawsuits internationally.


Joking & Anti-Authority Expression

Just wanted to make friends laugh!

Social Networking Sites (Facebook, MySpace)– Teachers have been falsely described as engaging in sexual acts in

class.– Principals have been described as pedophiles.– Sexual orientation, hygiene, teaching styles are discussed.– Unflattering photographs are posted with insults and defamatory

statements.

Video-sites (YouTube)• Teachers are provoked and filmed on cellular phones when frustrated

– videos are subsequently posted on YouTube.


Cyber-bullying, Joking, or Private Conversations?

BK’s FaceBook lie about his female teacher masterbating in class. • Interviewed on CBC and explained he was joking in a private conversation

with friends

Students at a school in Montreal and two schools in Ontario engaged in similar on-line discourses out teachers’ and school administrators.

• All were suspended or expelled under zero-tolerance policies. • The students claimed infringement of their Charter rights to free expression. • Rejected claims of “cyber-bullying” because teachers were not directly

targeted. • Insisted they were simply having “private conversations” or “joking.”

Canadian Teachers’ Federation in 2008 called for “cyber-bullying” to be added as a sanction to the Criminal Code but what they really meant was “cyber-libel” against teachers.


Cyber-bullying or Bad Joke

Teacher in Foshan Guangdong found photographs of his face on-line in the Foshan Daily Forum posted onto 1) naked human body; 2) body of a monkey; 3) body of a chicken,

Student (Xioarong) who modified the photographs claimed he did not

realize that he broke the law by modifying pornographic photos using Photoshop software.

Perceived his actions would be received as a joke. • Not meant to harm his teacher at all. • Simply wanted to make his friends laugh (Zhang & Wei, 2007, July 22).

Xiaorong was fined equivalent of $500 for being a nuisance.

NEW U.S.RULINGThreat, Libel or Bad Jokes?

• D.C. an up-and-coming musician set up a website describing his appearance (“golden brown eyes”) and his music.

• Had a film contract and had starred in various public concerts, had a CD that he wanted to market on-line.

• His website had a guest-book inviting comments on his website.• His guestbook received the following types of comments from school-

mates:“Faggot, I’m going to kill you.”“You are an oversized faggot .. . I just want to hit you in the neck –

hard.”“I am looking forward to your death.”“You are now officially wanted dead or alive.”

“I will personally unleash my man-seed in those golden brown eyes.” (D.C. et al vs. R.R. et al – Court of Appeal, State of California, Reasons for Judgment, p. 5, March 15, 2010: p.5.)


NEW RULINGThreat, Libel or Bad Jokes?

The most disturbing comments were posted by R.R. who D.C. and his parents ultimately named in litigation as the most serious threat to D.C.’s emotional and physical health:

Hey D.C., I want to rip out your f...... heart and feed it to you. I heard your song while driving my kid to school and from that

moment on I’ve . . wanted to kill you. If I ever see you I’m . . . going to pound your head in with an ice

pick. F… you, you d.ck-riding penis lover. I hope you burn in hell. [by R.R.](D.C. et al vs. R.R. et al – Court of Appeal, State of California, Reasons for Judgment, p. 5, March 15, 2010.).


D.C. vs. R.R. et al (2010)

• D.C. suffered psychological harm and LA Police Department asked him to withdraw from school for his own safety.

• Family had to re-locate to another school in another district causing considerable expense and time to the entire family.

• Film contract had to be delayed. • Although he was not gay, people began to ask if he was gay.• He had to undergo medical treatment, his grades fell and he lost self-

confidence.R.R.• Testified that he did not know D.C. and did not care if he was gay.• A friend had suggested he view the website.• Was irritated by D.C.’s arrogance and description of his “golden

brown eyes.”© Shaheen Shariff, Ph.D.

D.C. vs. R.R. et al (2010)

R.R defended his actions by stating that:• He sensed others reacted similarly.• As postings became increasingly bizarre it was apparent that there was a

competition to see who could post the most outrageous comments.• He decided to add his own message playfully.• His motivation had nothing to do with any perception of [D.C.’s] sexual

orientation.• Described his own message as “[F]anciful, hyperbolic, jocular, and taunting”

motivated by “[D.C.’] pompous, self aggrandizing, and narcissistic website – not his sexual orientation.”(p.10-11).

• Explained his other motive as more “pathological” (p.11) to win the one-upmanship.

• Assumed any rational person would understand his repulsion to D.C.’s self promotional style. (pp. 10-11, Reasons for Judgment).

• Both he and his parents filed affidavits saying R.R. is non-violent, a vegetarian and a Bhuddist.


D.C. vs. R.R. et al (2010)

Court of Appeal Ruling:Re: Free Expression, Public website and libellous content• Hyperbole and “mere jokes” (p.18) are protected by the First Amendment, BUT

the banning of “true threats” is not unconstitutional.• Not necessary for speaker to intend the threat. It is a “prohibition from the

disruption that fear engenders.” (p.17)• Limiting on-line threats protects from the “possibility that the threatened

violence will occur.” (p.17).• The further speech strays from the values of persuasion, dialogue and free

exchange of ideas and moves towards threats the less it is protected. (p. 18)• Impact on victim, his family and perceived threat to safety must be considered.• False information on sexual orientation caused reasonable people to believe it

as truth – therefore the expression was libellous.• D.C. was not so famous that his actions were a matter of public interest –

comments were made and the jokes were a private matter between the school-mates even though posted publicly.


D.C. vs. R.R. et al (2010)

Court of Appeal Ruling:• Impact on victim, his family and perceived threat to safety must be

considered.

• False information on sexual orientation caused reasonable people to believe it as truth – therefore the expression was libellous.

• D.C. was not so famous that his actions were a matter of public interest – comments were made and the jokes were a private matter between the school-mates even though posted publicly.



True Threat Cases

Anti-Authority Student Expression (American courts)(J.S., a Minor, v. Bethlehem Area School District (2000))

Teacher Sux’ website:Why Fulmer should be firedShe shows of her fat f...... legsShe’s a b...hWhy should she die?Give me $20 to help pay for the hit man

Diagram of Mrs. Fulmer with her head cut off.


Protected Expression?

Hey you piece of green-castle s..t

What the f... do you think of me [now] that you can[‘t] control me? Huh?

Ha ha ha guess what I’ll wear my f....ng piercings all day long and to school and you can[‘t] do s..t about it! Ha ha f....ing ha! Stupid Bastard!

Oh and kudos to whomever made this [I’m] pretty sure I know who).Get a background. (Appellant’s application p. 69)

The next day she posted: die . . . gobert . . . die.” (Ibid., p.70). Separate A.B. v. State of Indiana, No. 67A01-0609-JV-372, 2007 Ind. App.

LEXIS 694 (Ind. Ct. App. Apr. 9, 2007)


Sexting: Public Porn or Private Digital Bedrooms?

Philadelphia Case (under appeal to U.S. Court of Appeals, Third Circuit):

3 girls charged for distribution of pornography under Philadelphia pornography laws.

“Sexting”: Posting photos of two 12-year-old girls in training bras, and a 16-year-old wrapped in a towel with her breasts exposed as she leaves a shower.

• The lower court judge also required them to take “re-education” classes.

• Defense attorneys argue breach of First Amendment rights.

• Maintain that photos were posted for viewing by friends as part of the girls’ public-privacy social networking – NOT intended as pornography.

.

What’s Really Happening?

• Weber & Mitchell (2008) conduct international research on girls and their uses of technologies, observing that:

– Social networking empowers girls to construct and produce strong and independent identities through on-line personal diaries, which they define as “public-privacy.” (p. 28).

– Directed to friends privately through public website. Blurs legal boundaries and notions of “public” and “private” as they currently exist.

– For adolescents and teens -- friends’ opinions are critically important.


“Bedroom Culture” “Digital Bedrooms” “Public-Privacy”

Girl culture studies coined the term “Bedroom Culture” in 1976 (McRobbie & Garber, 1976):

• Girls’ bedrooms although physically private, are highly social spaces (chat on telephone with friends, pin up posters, have pajama parties, write in diaries, listen to music).

Evolved into the “Digital Bedroom” (Sefton-Green and Buckingham **).

• Location of children’s/adolescent’s cyber play: gaming, webs-surfing, social networking, and particularly, as a descriptor of girls’ websites.

Weber & Mitchell (2008) studied 50 eleven and twelve-year-old middle-class girls in South Africa who participated in a “digital bedroom” project as part of a second language course using digital cameras and power-point. The researchers observed the following:


“Digital Bedrooms” &“Public-Private” Spaces

This South African project offered a “glimpse into the world of girls that links the construction of identity, space, and digital technology.” (Weber & Mitchell, **:35).

What they have chosen to photograph [in a private space] and project in a public space also represents a social act, not just in relation to what they initially chose to photograph but also in relation to what they chose to project to their peers and teacher. In this respect, their work is not that different from the photo-sharing associated with their cell phone use or within social networking sites…The girls’ choices of image raise fascinating questions about their personal-public identities. (Emphasis added, Weber & Mitchell, **:36).

Plausible that the American girls charged with pornography in the Philadelphia case were simply engaging in “digital bedroom” activities that included on-line social networking with their friends through photographs of their private space.


Reactive Legal Responseto Moral Panic over Sexting

Florida, U.S.A:• 18-year-old Philip Albert was jilted by girlfriend Jesse Logan.• Reacted by emailing intimate photographs of Jesse that she had sent him in

confidence to 70 people including her grandparents.• Jesse committed suicide.• Philip charged under Florida’s sex offender laws and kept under

surveillance (Slane, 2009).

• First Amendment and Internet Law attorney Lawrence Walters argued that while the act of distributing such photos is wrong, they should not fall under child pornography laws because:– a) those laws are targeted towards adult sexual abuse of children; and;– b) teens are being held to a higher standard than adults because we do

not punish adults who engage in that behavior (Slane, 2009:).


Canadian Legal Approaches

Few cases have been considered in Canadian courts:

• Alberta teen charged in 2007 with distribution and possession of porn after distributing naked pictures sent by a 15-year-old girl pleaded guilty to a reduced charge of “corrupting morals.”

• In the Quebec case of Aubry v. Editions Vice Versa the circulation of private photographs were considered to be a civil law breach of the Quebec Charter’s protections of “private life.” (Slane, **).

– The court ruled in favor of a 17-year-old girl, taking into consideration her social circle and precisely a “teenager’s sensitivity to teasing by her friends” as foreseeable harm. In other words a person’s reputation can trump free expression.


Canadian Supreme Court

TEST: If an “ordinary person” is likely to believe the on-line comments this constitutes unfair comment, ruining reputation:

A good reputation is closely related to the innate worthiness and dignity of the individual. It is an attribute that must, just as much as freedom of expression, be protected by society’s law . . . Democracy has always recognized and cherished the fundamental importance of an individual . . . The reputation tarnished by libel can seldom regain its former lustre. A democratic society therefore, has an interest in ensuring that its members can enjoy and protect their good reputation so long as it is merited. [Emphasis added]

SCC: Hill v. Church of Scientology of Toronto (1995)

Questions: Can the “ordinary person’s” test be applied equally to children, adolescents, teens and adults? Would this apply to distribution of photographs rather than spoken or written expression?


Student Expression& School Obligations

Expression in school context specifically:• Tinker standard: “material or substantive disruption of learning.”• Fraser standard: “if it interferes with the educational mission.”• Hazelwood and Garrity: If school property is used.• Morse vs. Frederick BONG CASE: If there is a nexus to school.

U.S. and Canadian Civil/Human Rights guidelines:• Davis vs. Munroe US – Title IX): School should not create a

“deliberately dangerous learning environment.”• Canada – Robichaud, Ross, Jubran: Institutions should not create a

poisoned school or work environment.


Does Current Law AddressConvergence Culture?

On September, 2009 – Harvard University Law Professor, John Palfrey testified before the U.S. Congress:

• Urged lawmakers to consider problems of cyber-bullying and related Internet concerns more broadly and not to put sole blame on new technologies.

First, overwhelmingly, most of the ways in which young people use digital technologies are positive . . . Most young people, at least in the United States, do not distinguish between their ‘online’ and ‘offline’ lives. As a result, many of the good things that have gone on offline also happen, in one form or another, online: so, too, do many of the bad things that happen in everyday life play out also online.


Fear-based Responses

Although public feedback blogs are beginning to provide balance:Fear of a loss of control:• Perception of too much power in the hands of teens that needs

control. • Moral panic about the dangers of Internet for girls (not new).

Adult Responses:• Adult mindset grounded in zero-tolerance (military models). • Less attention is to root societal attitudes/off-line discrimination. • Increased calls for bans, legislation and “criminalization.”• Reduced emphasis on education (adults and youth) or effort to

understand how young people’s entire social life makes no distinction between on and off-line spaces.


Palfrey ReportRole of Technology Companies

• The law needs to provide incentives for technology companies to support and work to protect young users – and harness their innovations.

• Rethink existing laws by re-examining legal frameworks towards reasonable enforceability.

• AWARE US legislation is a great idea because it supports grants for youth at risk and partnerships between private and public sectors and close connection between research community and school community.

• American libel cases such as Zeran (see Shariff, 2008-09)define on-line intermediaries as “distributors” and not “publishers”

• Difficult to hold them responsible for failure to monitor defamatory or offensive expression.


School Responses

Zero TolerancePolicies egExpulsion

InformedPolicies

IgnoringRoot & TacitCondoning

ReducedSafety

IncreasedLiability

SustainedDiscrimination

DiminishedLearning

+Learn how kids

think on-lineRelevance

Know Rights &Responsibilities

Youth Voice

Dialogues on PublicAnd Private Spaces

PROACTIVEPROACTIVE

REACTIVEREACTIVE

+


Proactive Objectives?

• Develop capacity (among adult stakeholders and kids) to understand the impact of their expressions, AND when they cross the line to break the law.

• Bring kids, police, technology corporations and media together to dialogue.

• Involve students, teachers, librarians and parents directly in developing and delivering (as well as receiving) information, skills and approaches on rules of technology use, conduct and respect for privacy (QUESBA Task Force Report).

• Empower young people to become active agents in raising awareness among peers and stand up to bullying e.g. empowering girls program, pink shirt, Virginia and facebook support in recent rave case.


CYBER-CATS CLUB and E-Q-KIDS Website Project - McGill

Bi-Lingual Website – Four parts:

Resource data-base – 24 research assistants in law, policy, psychology, criminology, systems information, leadership, media literacy;

We are compiling international research that provides resources for stakeholders;

We have current affairs specialists that will survey and gather breaking news and the most recent court decisions, emerging laws, groundbreaking research, publicized cases.


CYBER-CATS CLUB and E-Q-KIDS Website Project - McGill

Weekly Video-blogs:– We will provide weekly Video-blogs to discuss the research we have found and breaking news.

On-line Moderated Interactive Sessions:For age groups 5-9; 9-12; 13-16; 16-20 – monitored dialogues that students would register for, with various stakeholders including:

• Police;• Corporate Intermediaries (marketing reps);• Media representatives;• Government officials and policy-makers;• School administrators, teachers, librarians;• Parents;• Community organizers.

Qualitative Research: - 16 Vignettes to help children and teens think through moral dilemmas involving the Internet , privacy, joking, harm, sexting, discrimination, bullying, etc. – Vignettes would also be used in on-line sessions.

NEED PARTICIPATION FROM SCHOOLS ACROSS CANADA


Engage and Empower Youth

• Help children and teens think through moral situations and assess their impact to an infinite audience on-line, as well as short and long term impact on their lives (criminal record, reputations, grades, health).

• Recognize discriminatory roots – sexism, homophobia, special needs, etc.).

Kids, teens and young adults are bored – need empowerment, ownership and relevance of learning: http://www.youtube.com/watch?v=dGCJ46vyR9o

• Dialogue with kids and raise awareness of impact of their words.

• Address adult mindsets on use of technologies (Lankshear & Knobel, 2007).


Selected Publications

Shariff, S. and Churchill, A. (2009). Truths and Myths of Cyberbullying. New York: Peter Lang.

Shariff, S. (2009). Confronting Cyber-bullying: Issues and solutions for the school, the classroom, and the home. Abington, Oxfordshire, UK: Routledge (Taylor & Frances Group)

Shariff, S. (2008). Cyber-bullying: What schools need to know to control Cyber-bullying and avoid legal consequences. New York: Cambridge University Press.

Shariff, S. and Johnny, L. (2007). Cyber-Libel and Cyber-Bullying: Can Schools Protect Student Reputations and Free-Expression in Virtual Environments? Education & Law Journal. 16 (3) 307-342.

Shariff, S. and Gouin, R. (2006). Cyber-Hierarchies: A New Arsenal of Weapons for Gendered Violence in Schools. In (Leach, F. and Mitchell, C. Eds., 2006). Combating gender violence in and around schools. Stoke on Trent. Trentham. 33-41.

Shariff, S. (2005) Cyber-Dilemmas in the New Millennium: Balancing Free Expression and Student Safety in Cyber-Space. Special Issue: Schools and Courts: Competing Rights in the New Millennium. McGill Journal of Education. 40(3) 467-487.

QESBA Task Force on the Internet and Related Technologies (June 28, 2008). Towards Empowerment,Respect and Accountability.

Thank you to the Social Sciences and Humanities Research Council of Canada for funding this important research on international and national cyber-bullying.

"cyber-bullying, cyber-libel or cyber-jokes?"

Documents

golden brown eyes

social networking sites

public interest comments

kids website project

social networking

philadelphia case

young people

moral panic