The Section of State and Local Government Law of the American Bar Association (ABA) hosted a panel on cyberbullying at the 2011 Annual Meeting.
The panelists included James Hanks of Ahlers & Cooney, Grant Bowers, Legal Counsel for the Toronto District School Board, Dr. Jeff Gardere, a psychologist from New York with expertise in mental health, and Kathy Macdonald, from the Calgary police.
Notes from James Hanks' talk, focusing on American legislation, is available here. This post focuses primarily on the Canadian content by the rest of the panel.
Defining the Problem
Cyberbullying is completely different from traditional forms of bullying because it uses the Internet as a weapon. The power imbalances are also different, because the target can be an educator who is not normally perceived as being on the deficit side of the power imbalance in the relationship. Parry Aftab provides the following definition for cyberbullying,
"Cyberbullying" is when a child, preteen or teen is tormented, threatened, harassed, humiliated, embarrassed or otherwise targeted by another child, preteen or teen using the Internet, interactive and digital technologies or mobile phones. It has to have a minor on both sides, or at least have been instigated by a minor against another minor. Once adults become involved, it is plain and simple cyber-harassment or cyberstalking. Adult cyber-harassment or cyberstalking is NEVER called cyberbullying.
Although students these days are often well versed in technology and the innovative ways to use it, they are less well trained on ethical or appropriate uses of these technologies, resulting at times in bullying, intimidation, violation of privacy, harassment, and malicious gossiping within the educational setting. The importance of the Internet to victims makes these behaviours even more pervasive than bullying in person, because they cannot easily escape the technology. Spectators and participants are no longer limited to the schoolyard and potentially include people around the world, often anonymously. One student in the Toronto District School Board has even defended their Internet material on the basis of artistic license.
Persistent attacks against teachers and administrators can have serious impacts on employees and erode the public confidence in the educational system. School districts can engage harm reduction strategies through prevention, education, effective intervention, and behaviour modification.
Internet bullying cannot adequately be dealt with under traditional discipline for generally bullying, and school codes of conduct should identify cyber-harassment separately, and should provide victim support, including counselling. Targeting of employees should be properly characterized as workplace harassment instead of bullying, because the power imbalance typically found with other forms of bullying is not present. Canadian legislation defines harassment in s. 264 of the Criminal Code,
264. (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.
(2) The conduct mentioned in subsection (1) consists of
(a) repeatedly following from place to place the other person or anyone known to them;
(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or
(d) engaging in threatening conduct directed at the other person or any member of their family.
The Department of Justice Canada resource, “Stalking is a Crime Called Criminal Harassment” provides further details on behaviour considered criminal harassment.
However, most forms of cyber-harassment are typically not threatening, but insulting or defamatory in nature, actionable through civil proceedings. Educators have to realize that they are public figures and will inevitably receive some form of criticism online, but need to be assured that the school district will take action when this criticism escalates to the point of harassment.
All employers in Ontario are required to have workplace harassment policies programs and procedures in place under the Occupational Health and Safety Act, with teachers specifically covered under the Education Act. Failure by a school district to take action may result in consequences for labour relations, and potentially expose them to liability in negligence. Bullying is explicitly mentioned under s. 306(1) of the Education Act as a possible grounds for suspension, which in Ontario can last a maximum of 20 days. However, bullying is not explicitly mentioned under s. 310 for grounds for expulsion, meaning school boards should add cyber-harassment to their list of expellable offences and also elaborate on the grounds for suspension to include online activity.
Recent changes to the Education Act require that employees must report incidents covered by the expulsion and suspension sections of the Act as soon as possible, notifying the victim's parents where the target is another student. Victim parents have also been provided the right to fully information about the disciplinary consequences. The Privacy Commissioner in Ontario has indicated that the safety imperatives in these measures outweighs any individual privacy issues.
In 2008, a Grade 8 student posted a 10-minute trailer on YouTube of a documentary mocking a classmate with Autism Spectrum Disorder. The trailer was accompanied by a 30-minute DVD intended for sale to other classmates. Upon investigation, the student responded by claiming artistic license and pointing to a disclaimer in the video.
The time and effort put into creating the video made it far more serious in the minds of administration than a simple tweet or Facebook post, so the student was suspended for 10 days, with two other students who assisted suspended for shorter periods.
Although mediation was proposed, the target of the video wanted the matter to be over with. The parent did not want cyber-bullying to be addressed in class as it would only draw further attention to the child. Instead, the school opted to provide a cyber-bullying component at the start of the school year to increase general awareness among the students.
To me this case demonstrates one of the main problems with discipline among students, who are reluctant to report bullies or advocate discipline due to peer pressures. School administrators have to balance between maintaining a positive school environment, and avoiding becoming overly interventionist when unnecessary, or where intervention may even exacerbate peer tensions.
A 17-year-old student graduated high school in June 2010. For the past two years she had communicated with a 38-year-old English teacher over Facebook and MSN, and the conversations slowly turned to more explicit content. Despite the communications over social media, in-person interactions between the two remained largely professional, with little personal interaction outside the class. However, once exams had finished and school was over for the year, the conversations escalated and the girl attended the teacher's house in June 2010 on three occasions and the relationship turned sexual.
The student reported the teacher in August 2010, and the police seized the computer and archived communications. The police charged the teacher with 3 counts of sexual exploitation under s. 153 of the Criminal Code. The grooming and seduction occurred when the authority as a teacher existed, invalidating a defence of the student's graduated status at the time of the acts. A TDSB policy also forbids sexual relations between teachers and students of any age for one year after the professional relationship has ceased.
A press release was issued by the police indicating that other victims might exist, and two more female students came forward.
The teacher was place don paid leave pending further investigation, and will be dismissed on conviction. If the charges are dropped or there is an acquittal, an internal investigation will occur to determine if the teacher should be permitted to return.
Parents were notified of the situation, and a community meeting was held with social workers, police, and board counsel to describe board policies and discuss internet abuse for sexual misconduct. Victim counselling and support services are offered on a without prejudice basis.
1) Unknown poster
An exchange in an internet chat room in 2007 recounted a sexual experience with an unidentified female teacher. Given some factual similarities in the case, a principal of a large secondary high school in Toronto was identified as the potential abuser. After an initial investigation, the school board concluded the case was a mistaken identity, but this did not prevent the re-posting of the allegations to a number of other websites by a malicious poster(s):
Pricipal (sic), XXX School, Ontario, cautioned for having secual intercourse with an 19-year-old male student on three separate occasions dating back to 2000, not only on Toronto District School Board property but also in her car near a local golf course and the apartment of a friend. A discipline committee panel held a private hearing into these incidents relating to failure to observe appropriate student/educator boundaries. Subsequently at the board's and the student's require that the incident not be made public it was agreed that professional psychological counselling for a period of one year be required.
After confirming with the school staff that the information was untrue, the school board attempted to remove the information from the Internet to protect the professional authority and dignity of the teacher (in the workplace), which was challenging since the postings occurred in multiple jurisdictions outside of Canada.
Using a demand letter, counsel was able to put the identifiable individual or corporation with the power to remove the harmful information on notice that they may be held responsible. The experience of the board was that evidence of other sites removing the information helped convince a webmaster to remove the post.
A secondary course of action was to reply to the offending information, providing a real name, position and contact information, confirming that it is inaccurate and warning other posters not to re-post it. Google Alerts helped track compliance and maintain monitoring.
Where website administrators are uncooperative, it was extremely difficult to identify the anonymous posters from the web site without a court order, which are typically only provided in the most serious cases.
In my experience, individuals targeted in this manner by another person or small group of people for primarily personal reasons are much easier to deal with than public figures or individuals tied into an issue of public interest. The panelists indicated that non-compliance was typically more related to administrative workload than freedom of expression issues, but for these higher profile cases greater resistance is to be expected. Forced removal of anonymous posts is historically rare but will be a growing phenomenon, and I've posted on this before.
2) Known posters
The Ontario Superior Court of Justice awarded $15,000 in libel and slander for a principal and superintendent in Ottawa-Carleton District School Board v. Scharf (aff'd). The defendants were the parent and advocate of a student with Downs Syndrome, who published a News Release and supporting documents on January 19, 2005 to intimidate the plaintiffs to place the students in a French immersion program. The four identified defamatory statements in the release were:
(a) “An order for a 45 day incarceration for contempt of court is being sought against Mrs. J.W., Principal of Sawmill Creek Elementary School and Mr. M.N., Superintendent of Schools for refusing a French Immersion Elementary School placement with supports and services to accommodate N.P. who has Downs Syndrome in violation of a court order…
(b) “By October 2004 the placement had become unsafe for N.P..”
(c) “Principal J.W. is under investigation for criminal conduct by the Ottawa Police.”
(d) “Since the filing of the contempt of court motion, the OCDSB has agreed to resume the supports and services in the French Immersion classroom but only for two weeks after which time they are going to place her in an English only program…
Morin J. applied the test in Newman et al v. Halstead et al:
- the impugned words were written and published;
- the words referred to the plaintiff; and
- the words complained of are defamatory
The "court order" identified by the defendants was actually an application for judicial review, which was in fact dismissed, as was the contempt motion. The safety allegations, and the assertion of a criminal investigation, were unsubstantiated by the record. Consequently, Morin J. found the News Release to be defamatory,
 On all of the evidence, I am satisfied that the four statements contained in the “News Release” under consideration ((a), (b), (c) and (d)) are false and clearly defamatory of both the plaintiffs. At no time did the plaintiffs ever refuse N.P. placement with supports and services in violation of a court order. The evidence at trial does not, in any way, support a finding of assault, use of excessive force or any improper action on the part of J.W. that would support the suggestion that the school was unsafe for N.P. at any time. The evidence clearly discloses that J.W. was never under investigation for criminal activity by the Ottawa Police. Statement (d) clearly implies that M.N. acknowledged wrong doing and contravention of an existing court order by himself and J.W.. That statement is false and defamatory as are all four statements under consideration.
Interestingly, the court also found that the plaintiffs were not required to comply with s. 5(1) of the Libel and Slander Act because e-mail, faxes and website postings were not considered a "broadcast." The court also found that even if notice was required, the notice provided by their professional representatives was sufficient as notice did not have to be provided personally by the plaintiffs.
In addition to the damages award, the plaintiffs were successful in receiving judgment ordering the defendants to remove all of the defamatory material, an interim and permanent injunction preventing republishing, and an order for a retraction and apology.
Cyber Bullying Research
Research by Tanya Beran of the University of Calgary and Karen Walroth found:
- cell phones are the most commonly used devices for harassing other students
- an estimated 8% of students were victimized online, 6% were victimized off-line, and 5% admitted to perpetrating cyber bullying against peers
- students who were cyber bullied in university were more likely to report being cyber bullied in high school, and students bullied off-line in university were more likely bulled off-line in high school
- victims of cyber bullying report feeling angry (33%), feeling sad or hurt (22%), and embarrassed (21%); feelings of anxiousness and poor concentration were present, and at lower numbers were reports of fear, crying, poorer academic achievement, self-blame and absenteeism
- other students express concern for the victims of cyber bullying
In Cyber-Harassment: A Study of a New Method for an Old Behavior, Beran and Li found,
Although computers have been introduced in classrooms as a means of facilitating access to educational information (Bailey & Cotlar, 1994), many students in our sample were involved or heard of someone involved in cyber-harassment. About two thirds of students reported hearing about incidents of cyber-harassment, one quarter of students were harassed several times or more, and about a quarter of the students in our sample reported using this form of communication to intentionally harm their peers. In addition, many students reported being negatively impacted by the experience, and had been harassed in other ways as well. These results suggest that “bullying has gone digital” and requires further research to explain how and why adolescents in a technologically advanced society harass one another…
Considering that many illegal activities occur over the Internet (for instance, money laundering and theft of intellectual property), responsible behaviors must be promoted at an early age. As we learn more about cyber-harassment and develop strategies to manage it, administrators will likely experience difficulties with surveillance and other control mechanisms. However, just as smoking, littering, and driving after consuming alcohol have become socially unacceptable, attitudes about bullying in school and cyberspace need to change so that more support is provided to protect students from fear and intimidation from harassment that ultimately interferes with their learning.
Beran and Li also concluded in The Relationship between Cyberbullying and School Bullying
Students may engage in cyberbullying for several reasons: the source of the bullying is difficult to detect as messages can be sent without personal identification; a child who sends a harassing message has time to construct and carefully prepare the message to maximise the harm it causes; in traditional school bullying it may be hard to create hurtful messages during the day; and there may be little fear of physical or verbal retaliation as it is difficult to identify the sender, and the victim and sender are usually physically remote from each other…
The results of this study suggest a connection between school bullying and cyberbullying. An important implication is that bullying is a multifaceted phenomenon involving various behaviours at differing times, possibly involving many people. Considering that the majority of bullying occurs before peer witnesses, their role in maintaining or exacerbating bullying must also be considered to be a key component in prevention and intervention programs. Cyberbullying intervention programs, therefore, should be developed in conjunction with anti-bullying programs. This concurs with the limited number of existing intervention strategies proposed (Trolley et al., 2006) in the literature. These stress the importance of a holistic approach to address cyberbullying. Further, it suggests that addressing cyberbullying in the schools requires collaborative efforts among school officials, parents, and the broader society (Trolley et al., 2006).
Cyber Bullying Resources
James Hanks provided the following resources on cyber bullying prevention:
- Bully Police
- City of Bowling Green, Kentucky
- Cyberbullying Research Center
- Gay, Lesbian & Straight Education Network
- Illinois Attorney General
- It Gets Better
- National Crime Prevention Council
- National School Boards Association
- Safe Kids
- Safety Web
- Stop Bullying
- Stop Cyberbullying
- The Trevor Project
- Two presentations on privacy, campus and workplace violence and student affairs
- “Negotiating the Balance” in managing on-campus violence
- “Staycation” gives time to discover an excellent podcast on campus and workplace violence
- Managing the threat of on-campus violence and the CAUBO conference