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CONFRONTING CYBERBULLYING
This book is directed to academics, educators, lawyers, and government policy
makers who are concerned about addressing emerging cyberbullying and antiauthority student expressions through the use of cell phone and Internet technologies. There is a current policy vacuum relating to the extent of educators' legal
responsibilities to intervene when such expression takes place outside of school
hours and off school grounds on home computers and personal cell phones. Students, teachers, and school officials are often targets of such expression. The author analyzes government and school responses to cyberbullying that are grounded in
legally positivist paradigms. Her review of a range of legal frameworks and judicial decisions from constitutional, human rights, and tort law perspectives redirects attention to legally substantive and pluralistic approaches that can help schools balance student free expression, supervision, safety, privacy, and learning.
Dr. Shaheen Shariff is an associate professor in the Faculty of Education at
McGill University. Her book publications include Censorship! . . . or . . . Selection?: Confronting a Curriculum of Orthodoxy through Pluralistic Models and CyberBullying: Issues and Solutions for the School, the Classroom, and the Home.
Confronting CyberBullying
WHAT SCHOOLS NEED TO KNOW
TO CONTROL MISCONDUCT AND
AVOID LEGAL CONSEQUENCES
Shaheen Shariff, Ph.D.
McGill University
CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo
Cambridge University Press
The Edinburgh Building, Cambridge CB2 8RU, UK
Published in the United States of America by Cambridge University Press, New York
Information on this title: www.cambridge.org/9780521877237
© Shaheen Shariff 2009
This publication is in copyright. Subject to statutory exception and to the
provision of relevant collective licensing agreements, no reproduction of any part
may take place without the written permission of Cambridge University Press.
First published in print format 2008
ISBN-13 978-0-511-47407-1
eBook (Adobe Reader)
ISBN-13 978-0-52187723-7
hardback
ISBN-13 978-0-521-70079-5
paperback
Cambridge University Press has no responsibility for the persistence or accuracy
of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
I dedicate this book to my parents, Ramzan and Gulshan Dedhar, for
their continued love
∗
∗
∗
To my sister, Shahira Clemens, for being an exemplary mum to my
gifted and beautiful nieces, Saffia and Suraya
∗
∗
∗
And, last but not least, to my loving husband and children,
Zahir, Farhana, and Hanif, for your patience and love always
Contents
Figures
page xi
Tables
Acknowledgments
Cyber Misconduct: Who Is Lord of the Bullies?
Peer CyberBullying: A Lord of the Flies Syndrome?
Antiauthority Cyber Expression
Constitutional Law: Freedom of Expression versus Safety
Human and Civil Rights Jurisprudence: School Environment
Profile of Traditional and CyberBullying
vii
viii
CONTENTS
Characteristics of CyberBullying
Online Social Communication Tools
Prevalence of Sexual and Homophobic Harassment
Intersecting Forms of Discrimination
Cyber Libel or Criminal Harassment: When Do Kids Cross
Case 1: Modified Photographs of a Teacher
Cases 2 and 3: Piggy and Little Fat Boy
Case 4: Ning's Sexual Harassment of a Teacher
Cases 1 and 2: Female Perpetrators
Case 4: Pornographic Novel as Libel
Case 5: Physical Assault as Slander
Cultural Considerations: Ijime and Netto Ijime
Gakko Ura Saito: Mobile-Bullying
Ijime-jisatsu (Suicide Linked to Ijime)
Tort Law: Cyber Libel, Defamation, and Slander
Kids' Perspective -- Their Own Private Space
Case 1: Brad and His Online Friends
Cyber Libel: The Canadian Context
Negligence, Supervision, and Malpractice
Tort Law, Supervision, and Risk
Student Free Expression: Do the Schoolhouse Gates Extend
Supervision: Does School Authority Apply in Cyberspace?
Adult MindSets and the Digital Disconnect
CONTENTS
ix
Freedom of Expression versus Safety and Privacy
Expression as "Material and Substantive Disruption"
Expression as "Disruption of Basic Educational Mission"
Nexus: Computers as School Property
Fostering Positive School Environments: Physical and Virtual
Gendered Influence on CyberBullying
Gender Socialization Begins at Home
Human and Civil Rights Jurisprudence: School Environment
Why Teens Engage in CyberBullying
Are Child Protection Laws Relevant to CyberBullying?
Censoring Cyberspace: Can Kids Be Controlled?
Teachers Shape Law and Sometimes Impede Learning
Tacit Condoning of Peer-to-Peer Bullying
Parent versus Teen CyberBullying
School Officials, School Reputations, and the "Official" Story
Media Influence on Censorship and Positivist Laws
Reconceptualizing Law in Cyberspace
x
CONTENTS
The Tragedy of the Commons: Lessons for Cyberspace?
Law: A Question of Individual (Student) Decision Making
Legal and Policy Responses: A Few Examples
Deleting Online Predators Act (DOPA; H.R. 5319, 2006)
Educational Use of Technologies
Library Support for Online Education
Council of Europe Draft Convention on Cyber Crime (2001,
Europe's Information Society: Public Consultation -- Safer
Internet and Online Technologies for Children
Cyber Collaboration: Models for Critical Legal Pluralism in
A Typology of Laws: Comprehensive Legal Frameworks
A Critical Legal Literacy Model for Teacher Education
Practical Solutions: Online Limitations
Raising Student Awareness of Censorship
A Concept Map: Positive School Environments
Figures
5.1. What is the school's role?
page 149
6.1. Typical forms of cyberbullying
6.2. School's position on cyberbullying
6.3. Students harassing students
6.4. Canadian Teachers' Federation communications technology
8.1. Critical Legal Literacy Model
8.2. Concept map incorporating critical legal literacy
xi
Tables
3.1. Tort Law: Cyber Libel and Negligence
4.1. Some Dimensions of Variation between the MindSets
4.2. Freedom of Expression Standards
5.1. Experience Being CyberBullied
6.1. Teachers on the Experience of CyberBullying
8.1. A Plurality of Legal Standards Relevant to CyberBullying
8.2. Validating Stakeholder Claims
xiii
My interest in the intersection of law and education began with my return to
graduate school in Vancouver, Canada, as a mature student. I had worked at law
firms for about twenty years while raising two children. As they reached their
teens, I returned to university to pursue an academic career. The Centre of Education, Law and Society at Simon Fraser University, spearheaded by Professor
Michael Manley-Casimir, provided an opportunity, under his mentorship and
that of Dr. Roland Case, an active member of the centre, to study the range of
ways in which the law (normative, legislative, and judicial) affects every aspect
of school life and ultimately shapes policy decisions and educational practices
resulting from those decisions.
As my children went through school, there were several incidents in which
they were bullied by peers but received little intervention on the part of school
administrators and teachers. This led me to study, as part of my doctoral work,
the legal obligations of schools to address bullying. At that time, the Internet
was not as powerful as it is now, and cyberbullying did not exist. However, I
had already learned about the challenges schools face in navigating stakeholder
rights and interests relating to freedom of expression, equality, and safety. These challenges became evident during my master's degree study of a controversial
court case involving the banning of three children's books recommended for
discussion of same-sex parents in kindergarten classrooms. I learned that school
officials and teachers need guidance in navigating and balancing stakeholder
claims to control of knowledge, learning, and expression in school contexts.
My subsequent doctoral work on the legal obligations of schools comprised
an in-depth review of tort law cases on negligence of supervision in the school
context, of constitutional obligations such as equality and freedom of expression rights of children, and of human and civil rights to learn in environments
free from discrimination and harassment. These pluralistic legal frameworks
enabled me to develop a set of standards for bullying in schools, informed by
comprehensive review of the research on the forms of bullying, its etymology
and history, and its prevalence and impact, all of which provided a context for
the legal frameworks.
xv
xvi
Once I began my academic career at McGill University, expanding this
research to identify a set of legal standards and responsibilities of schools to
address cyberbullying was a natural extension of my work. I secured two grants
from the Social Sciences and Humanities Research Council of Canada to engage
in national and international research on cyberbullying in Canada, the United
States, Japan, China, India, New Zealand, Australia, and Great Britain. The
international work is just beginning, and hence only preliminary results could
be reported in this book. Little did I realize when I embarked on this research,
however, how complex and challenging it would become. Nor had I envisioned
the amount of attention it would receive or the extent of the fear, controversy,
and interest the topic would attract. Cyberbullying is now at the forefront of
many public policy debates and legislative initiatives and a focus of the media
worldwide.
As technologies evolve and advance at rapid rates and children are immersed
in them at increasingly younger ages -- and as adolescents become proficient
and comfortable with social networking sites, blogs, chat rooms, and mobile
phones -- many adults, whose use of computers is limited to e-mail and word
processing, find themselves incapacitated and left behind -- or as some would
say, technologically challenged. With lack of familiarity comes discomfort. With
discomfort comes fear of the unknown, and with fear of the unknown comes
loss of a sense of control. This fuels the desire to regain control and power over
the ways in which children learn and express themselves. Technologies place
newfound power in the hands of young people, and cyberspace provides fluid,
as opposed to rigid, boundaries within which to move. While young people
test out their newfound spaces, parents, teachers, and school administrators
confront a policy vacuum with regard to the extent they can be expected to
supervise student expression and online interaction as the lines between freedom
of expression, safety, privacy, and supervision become increasingly blurred.
Although most scholarly research and books on bullying focus on children's
behavior and look for ways to treat it using behavior modification techniques
or positivist modes of discipline, my book addresses an important gap in the
scholarship on bullying and cyberbullying. I provide a unique perspective that
directs educators, government policy makers, and legal practitioners to reconceptualize their policy responses through critical pedagogy and legally pluralistic responses that are grounded in substantive principles of law.
This book also discloses the extent and potential of cyberbullying to spread
in countries with large populations such as India and China. The international
research also discloses a tendency in Asia, like the West, to adopt a punitive
rather than educational approach, although a number of interesting cultural
nuances are disclosed. A profile of bullying and cyberbullying is included
in Chapter 2. Chapters 3 to 5 each address a specific aspect of law relating to cyberbullying, such as cyber libel and defamation, freedom of expression, and human rights issues, framed within a contextual discussion of the
issues and presented through analysis of case studies and research. Chapter 6
considers supervision and censorship of student spaces and expression.
Chapter 7 undertakes a discussion of positivist versus legally pluralistic perspectives and highlights proposed or emerging legislation in Europe and North
America to address cyberbullying. Finally, in Chapter 8, I present teacher education and professional development models that are grounded in substantive
law, legal pluralism, and critical educational pedagogies. These are alternatives
to the popular reliance on disciplinary approaches that are rooted in military
models. The approaches I advocate in this book lend themselves to significantly
more ethical, nonarbitrary, and legally defensible policy and practice responses
than do punitive responses that enhance intolerance, criminalize children, and
censor useful educational technologies.
Technologies are here to stay. The behavior of young people on the Internet is
simply an extension and reflection of the attitudes and forms of discrimination
adults model on a regular basis in the physical world. Although disciplinary
approaches that are rooted in positivist perspectives of the law might be well
intentioned and seem sensible, such responses will only serve to exacerbate an
already complex phenomenon. If I can convince readers that there are intelligent
and thoughtful alternatives that also reside in law but are grounded in the
fundamental principles of social justice and legal pluralism, I believe we will
be on our way to resolving the so-called battle in cyberspace, as the issue has
been defined in the media. Ultimately, it is less a question of winning a war than
of developing constructive and collaborative relationships with young people
that allow us all to use technologies and engage in digital literacies to gain their maximum learning and social potential.
It will be evident to readers, commencing with the opening quote in Chapter 1, that some of the examples of cyberbullying in this book contain lewd
and obscene language. It should be noted that the language in these quotations
is either taken directly from fictional texts as referenced, or represents actual
examples of cyberbullying that were detailed in judicial transcripts, using the
authentic language. It is important for judges to do this for the purpose of
judicial analysis as set out in their reasons for judgment. I have chosen to use
the authentic words no matter how lewd to illustrate their full impact on those
who are victimized as a result of such expression and to be consistent with the
court transcripts. The accuracy of the words used, therefore, originates in the
judicial transcripts and fictional writing.
As such, I cannot take responsibility for any misquotes.
Shaheen Shariff, Ph.D., Faculty of Education, McGill University
Acknowledgments
I begin by thanking Ms. Frances Helyar, Ph.D. candidate, without whose commitment, persistence, efficiency, thoroughness, and patience this book would
not have been completed. Frances persevered with me through this book under
extremely tight deadlines, taking on more than she had promised, always gra---
ciously and with a smile (yes, I can read the smiles in your e-mails at 1:00 a.m.,
Frances!). I am greatly indebted for your perseverance, timeliness, and perfec---
tionism throughout this second book project.
A special thank-you to my legal research assistants; Thomas Bernard
McMorrow for his brilliant paper on legal pluralism and cyberbullying; Pavel
Matrosov for help with the legal citations; and Sujith Xavier, Amar Khoday,
Katy Frattina, and Sarah O'Mahoney for their valuable contributions on international legislation and case law on cyberbullying.
To my research assistants in the Faculty of Education, who have worked
on both my cyberbullying Social Science and Humanities Research Council of
Canada (SSHRC) research projects, I thank you for your conscientious commitment and dedication. In particular, I thank Andrew Churchill for his leadership,
enthusiasm, and intelligent insight; Tomoya Tsutsumi for his precision in encoding the data in Quebec; and Julie d'Eon, Yasuko Senoo, and Lanxu Zhang for
providing the cultural insight into the Japanese and Chinese contexts, for helping me develop collaborative networks in Japan and China, and for translating
the research.
I also thank SSHRC for making possible the research that went into this book
and related projects. It is encouraging to have a federal government granting
agency that recognizes the need for cutting-edge research on a moving target,
bringing together interdisciplinary research paradigms such as law, technology,
and education in an international forum. Connected with my SSHRC projects,
I thank my colleagues: Professor Colin Lankshear, who was instrumental in
helping me bring together my understanding of the mindsets people adopt
with respect to digital literacies, as well as Dr. Dawn Zinga, Dr. Dianne Hoff,
Mr. Roderick Flynn, Dr. Roland Case, Dr. Edward Brown, Professor Motohiro
Hasegawa, Mr. Wenqi Zhang, Dr. Jaishankar Karuppannan, Dr. Patricia
xix
xx
ACKNOWLEDGMENTS
Ehrensal, and Mr. John Fenaughty, all of whom are collaborators, coinves---
tigators, or consultants involved in the international project on its educational
or legal aspects. All of your unconditional collaboration and input has helped
me to gain an informed perspective on navigating the emerging complexities of
cyberbullying worldwide.
I am also indebted to Ms. Cathy Wing and Ms. Catherine Pearce of the
Media Awareness Network for their invaluable support, research contributions,
and joint conference presentations. I look forward to working with them to
develop much-needed online professional development and teacher education
programs. Thank you to Mrs. Nancy Hain, assistant director of secondary
schools at the Lester B. Pearson School Board, for her support as we conducted
research in the schools and for her initiative in setting up a local task force;
to Myles Ellis of the Canadian Teachers' Federation for authorizing use of the
federation's recent resolution; to Joyce Mason and Beatrice Schriever of the
Ontario College of Teachers for getting my message out and approving use of
that organization's most recent survey on cyberbullying of teachers; and to all
school administrators, teachers, and parents, too many to be named, who have
contributed in some way to my research.
Thank you to the following publishers for permissions granted for use of
sources and my earlier work, as follows: Sense Publishing, Education and Law
Journal, Atlantis: A Women's Issues Journal, International Journal of Cyber---
Criminology, International Journal of Learning, McGill Journal of Education,
The Educational Forum, the University of Toronto Press, Trentham Books,
Peter Lang, and Routledge (Taylor & Frances Group).
Thank you to my family -- Zahir, Farhana, and Hanif -- for believing in what
I do and for your patience, despite the fact it takes me away from you for long
hours.
Cyber Misconduct: Who Is Lord of the Bullies?
"Yo Jaysus, your ass is drippin," says Max Lechuga. He's the stocky guy in class,
you know the one. Fat, to be honest, with his inflatable mouth. "Stand clear of
Jaysus' ass, the fire department lost another four men up there last night." The
Gurrie twins huddle around him, geeing him on. . . . The class detonates through
its nose. . . . Jesus abandons his desk with a crash and runs from the room. . . . Then Max Lechuga gets out of his chair, and goes to the bank of computer terminals
by the window. One by one, he activates the screen-savers. Pictures jump to the
screen of Jesus naked, bent over a hospital-type gurney.
(Pierre, 2003, pp. 231--233)
· · ·
The courts of law would shit their pants laughing. . . . But here's why they'd laugh: not because they couldn't see . . . but because they knew nobody else would buy it.
You could stand before twelve good people . . . and they wouldn't admit it. They'd
forget how things really are, and slip into TV-movie mode where everything has
to be obvious.
(ibid., p. 51)
Pierre's Vernon God Little illustrates the tortuous power of words and images; the anger, hate, and pain they can promote; and their transformation into depictions and online permanence for viewing by an infinite and global audience, from classroom to cyberspace. The narrative depicts peer classroom bullying
and cyberbullying at its core.
Not only does this narrative promote significant discomfort as we witness the
bullying of a boy named Jesus, the symbolism of Jesus' crucifixion in a school
classroom by his fellow students represents the plight of all victims of bullying
and cyberbullying. The narrative is laden with antiauthority significance -- a
rebellion against the institutional order of the classroom, of the church, and of
the state, with schools as its agents. It also symbolizes a challenge to a well-known symbol of love, peace, and order in the world.
1
2
CONFRONTING CYBERBULLYING
However, the Jesus in Pierre's book fights back, like Eric Harris and Dylan
Klebold, who were responsible for the Columbine High School massacre in
1999 (Shariff, 2003). Jesus runs out, buys a gun, and returns to undertake a
shooting rampage, killing the perpetrators of his bullying. His friend Vernon
becomes singled out as having supported Jesus, although Vernon did not know
what his friend was going to do. As I finalize and edit this chapter on September
11, 2007, I am painfully aware that a year ago this week in Montreal, young
Kimveer Gill walked into Dawson College in the heart of Montreal and went
on a shooting rampage, killing one student and injuring many others. It was
later disclosed that Gill had posted photographs of himself with his guns on
a vampires.com Web site and had endured years of bullying as a student in
elementary and high school. Moreover, it does not escape me that on September
11, 2001, six years ago today, the World Trade Center towers were blown up in
one of the most unforgettable acts of terrorism in Western history. Following
that event, we have all become sensitized and desensitized to the endless media
reports of U.S. military action in Iraq and Afghanistan, of suicide bombers, of
more shooting rampages in schools, and of incessant news reports about the ills
of the Internet, the dangers that lurk within it, and opinions on how it allows
young people to run rampant without adult control.
In human society throughout history, there have always been perpetrators
of bullying (whether they engage in it individually, in groups, or through state---
sanctioned wars). Hence, there are always victims -- those who are targeted by
the perpetrators -- and there are others who become "collateral damage" like
Jesus' friend Vernon. In the bullying and cyberbullying context, I contend that
even the bystanders who witness, reinforce, and support bullying are victims
because they learn to engage in hostile behavior, following poor leadership
models and being distracted from engaging in positive social relationships and
beneficial learning. Whether the bullying takes place in school or in cyberspace,
the fact is that it is perpetrated by human beings who act in particular social,
institutional, political, and normative contexts. What changes, therefore, are
the contexts, the actors, and the specific influences that affect their actions and forms of expression.
The issue of cyberbullying and cyber misconduct currently tops the agendas
of government officials, educators, parents, civil libertarians, and legal practitioners. Enter the legal system. Laws have always been necessary to maintain
a certain level of social order and compliance to agreed norms of behavior in
civil societies. When the boundaries of that normative order shift, traditional
modes of legal control no longer apply. The transformed order requires new
applications of the law, new law, or alternative means of navigating new dilemmas. This is the challenge that has emerged for educators and policy makers
in an information age driven by rapid technological advancement. Maintaining civilization and civil behavior is difficult enough in organized society, even
when the rule of traditional law is supposed to prevail and order and authority
exist to protect innocent citizens. What happens when traditional rules and
the authority are removed, as in dystopian fiction? This is the dilemma that
CYBER MISCONDUCT: WHO IS LORD OF THE BULLIES?
3
schools confront as they attempt to navigate the legal and moral challenges
around responding to cyberbullying and, ultimately, developing in students
appropriate moral compasses for an electronic age.
This book seeks to identify legal responses to online bullying and antiauthority forms of expression that demonstrate the greatest promise to address the
issues in the absence of established legal precedents related to cyberbullying. I
draw on a range of established legal frameworks and emerging judicial decisions
to demonstrate that policy responses grounded in substantive law and legal pluralism, informed by critical approaches to education, show the greatest promise
of success.
Peer CyberBullying: A Lord of the Flies Syndrome?
The rapid advancement of cellular phones and Internet technologies has opened
up new and infinite spaces that young people can explore with fluid boundaries
that are difficult to monitor or supervise. In this regard, cyberbullying, as I
have explained elsewhere (Shariff & Hoff, 2007), is a modern-day version of
Golding's (1959) Lord of the Flies. In this classic tale, Golding maroons a large group of schoolboys on a deserted island where no rule makers are present, compelling the boys to deal with the resulting vacuum. Their first thoughts are
to look for adult authority figures:
"Where's the man with the megaphone?" . . . "Aren't there any grownups at all?"
"I don't think so." The fair boy said this solemnly; but then the delight of a realized ambition overcame him.
(Golding, 1959, p. 7)
It does not take long for relationships to deteriorate. The ruthless Jack and
his gang of friends use force and intimidation to dominate the other kids on the
island. Piggy, an overweight, asthmatic, bespectacled boy, becomes the natural
target for these perpetrators of violence because of his perceived weaknesses. He
is increasingly picked on, teased, and excluded on the basis of his shortcomings.
Maligned throughout the novel, Piggy is treated as an object of derision rather
than a human being. Golding builds up this objectification and brutality to an
excruciating level, culminating in Piggy's violent death at the hands of his peers: The rock struck Piggy a glancing blow from chin to knee; the conch exploded into a
thousand white fragments and ceased to exist. . . . His head opened and stuff came out and turned red. Piggy's arms and legs twitched a bit, like a pig's after it has been killed.
Then the sea breathed out again in a long, slow sigh, the water boiled white and pink over the rock; and when it went, sucking back again, the body of Piggy was gone.
(ibid., p. 167)
I remember this book as required reading when I was a high school student in
Kenya, East Africa, and I recall particularly the quote just cited. The symbolism
in the book was evident to me even at age fourteen or fifteen. I remember being
4
CONFRONTING CYBERBULLYING
deeply disturbed by Piggy's death. As an overweight, shortsighted student confined to wearing thick eyeglasses at an all-girls' boarding school, I often found
myself bullied for my weight, shortsightedness, and academic proficiency at
school. My closest friend and I were not very athletic. As soon as we began
to study the book in class, the teasing "Piggy and Porky" began during physical education classes. I recall not being significantly affected by it until I read that paragraph. Afterward, I was frightened of being equated with Piggy. In
revisiting this story, I am now reminded about the ironies and symbolism that
Golding so cleverly incorporated and that are so important to a discussion of
traditional and cyberbullying. Some of the symbolism relating to power and
disempowerment is highlighted proficiently in a paper by law student Thomas
Bernard McMorrow (2007):
The rock loosened by Roger, one of Jack's bullying cronies, signals the ultimate stage in the sacrifice of Piggy at the altar of might. Defining might is its blindness to the dignity of the persons over whom it is exercised. The inviolable value that each human being possesses is thereby ignored, denied or overridden. As philosopher Simone Weil once noted: "Might is that which makes a thing of anybody who comes under its sway. When exercised to the full, it makes a thing of man in the most literal sense, for it makes him a corpse."1 Throughout the novel, Piggy is increasingly treated, not as a person but as a thing. The callousness of this casual brutality thickens and hardens, rendering nearly all the boys but especially the likes of Jack and Roger, totally insensible to the respect that a human life, such as Piggy's ought to evoke.
As McMorrow notes, reading about Piggy's treatment in Lord of the Flies one cannot help but feel enraged, just as reading about Jesus' treatment in Vernon God Little is disturbing -- all the more so because the portrayal of injustice hits so close to home. The scenarios are all too familiar when we recall the recent suicide deaths of fourteen-year-old Canadian teenagers Hamed Nastoh
and Dawn-Marie Wesley as a result of bullying. Hamed jumped off a bridge,
and Wesley hanged herself at home. Also devastating was the cold and callous
murder of teenager Reena Virk by her peers, who beat and chased her over a
bridge and down to the water where they burned her face with cigarettes and
drowned her in the Pacific Ocean. The primary perpetrator, Kelly Ellard, held
Reena's head under water with her foot while smoking a cigarette, until her
victim breathed no more.
It strikes me that nothing has changed since Golding's time. These are all cases
of bullying that took place within the past decade. Lawyers for Kelly Ellard's
defense described Reena as dark and overweight, with hair on her back, while
Kelly was depicted as a pure white girl from a middle-class neighborhood who
would never do any wrong (Shariff, 2003). Just like Piggy, Reena was reduced to
a thing -- a subhuman and unattractive beast, thereby implying some sort of
justification for the violence that befell her. As Chapter 2 demonstrates, one
of the key aspects of bullying is that perpetrators gain power by defining
their victims as objects -- often weak, ugly, or dangerous -- who deserve the
CYBER MISCONDUCT: WHO IS LORD OF THE BULLIES?
5
punishment. This serves as justification for exclusion, ostracism, and violence
in almost every case. Moreover, in Golding's boys, each of us might recognize
ourselves, because at sometime in our lives, we have all put others down or
made them feel excluded for a variety of reasons.
What frightens educators and policy makers is that cyberbullying similarly
puts students on a virtual island with no supervision and few rules. It might be
assumed that this allows bullying to escalate to dangerous, even life-threatening
levels. Further, the boys on the island realize that being "evil" is easier when they assume a different persona, and so they paint their faces for anonymity before
they attack. Cyber perpetrators who bully their peers are no different. They
hide behind pseudonyms and well-disguised IP (Internet protocol) addresses,
making it difficult, if not impossible, for the victim to determine the source
of the threat. This anonymous nature of cyberbullying is perhaps the most
troubling of all, for it leaves victims wondering which of their classmates might
be a cyber aggressor.
Indeed, as the quote from Vernon God Little depicts, the entire class population could be involved. Yet recall from the opening narrative where the initial bullying took place: within the supervised confines of a physical space -- the classroom. It then moved into cyberspace. Hence the argument that cyberspace might in and of itself cause students to engage in bullying does not carry significant weight. Bullying in the physical context has taken place throughout history
for years. We cannot blame technology. What is disturbing when cyberbullying
is involved is that for victims, attending school and confronting unknown perpetrators is like being on an island -- there is no escape unless they take the
options adopted by Vernon's friend Jesus, or Harris and Klebold at Columbine
High School, striking back randomly and with extreme violence. Then there are
always innocent or "collateral" victims like Vernon or the victims of Klebold,
Harris, and Kimveer Gill.
It is important not to overlook the following two important premises that
underlie Golding's book, as reflected in his strong use of irony, because they are
pertinent to the cyberbullying context in schools.
Adults as Bullies
The first premise is that the young boys are no different from a group of adults,
whose relationship might deteriorate in the same way if marooned on an island
without rules. As television reality shows such as Survivor and Lost evidence, it is not the lack of maturity in children that can result in these conditions but the way in which human beings are prone to behave in conditions of depravity.
In this regard, Golding is talking about survival of the fittest. Moreover, as
McMorrow observes, the need for laws and rules that govern behavior comes
from "[T]he idea that the vast majority of us is so beyond the pale and that
it must be left to a cabal of enlightened lawmakers to steer us to happiness
in this world (or the next) conflicts with humanist values underpinning the
liberal democratic political project"2 (McMorrow, 2007, p. 5). In the context
of bullying and cyberbullying, this could explain the heavy reliance on zero-tolerance punishments, such as suspensions and expulsions, and, more recently,
6
CONFRONTING CYBERBULLYING
the strong calls from teachers and their unions for legislation as antiauthority
forms of cyberbullying become more prevalent online. We always believe that
the law will resolve everything and that after we punish the perpetrators, all
will be well. Regrettably, this is never the case. Nothing is that simple. The
phenomenon of bullying in and of itself is a complex one. When we add cyberbullying to the mix, there are no simple answers and, indeed, no one legal
response that will stop it.
The second, and in my view more important, premise that underlies Golding's
story is that all human beings are born with the capacity to make decisions
between doing good to others and their animal capacity for committing acts of
cruelty to others. If we assume that with appropriate nurturance and guidance
human beings can develop a moral framework that will overcome the desire to
harm others, then the focus turns to the society in which those human beings
live and the extent to which its institutions and culture are able to provide that
guidance and support. Whether the moral instinct to do good can survive in
extreme situations such as that in which Golding's boys found themselves is
dependant on the strength of their upbringing. What kind of society did these
boys come from? McMorrow explains their context:
Consider the larger context in which the novel is set. While the sociopolitical backdrop to the story is never drawn out explicitly, the fact that there is no explanation for why all of these English lads are on a plane so far from home and how it is that British naval personnel end up "rescuing" the boys implies that something is rotten in the state of adult affairs (i.e. the affairs of states) as well.3 If this is so, if the life of the boys on the island, brutish and nasty as it is, reflects life off the island, where global leaders guard their stash of arms as jealously as Jack clutches his wooden spear, then the shocking breakdown in social relations among the boys should come as no surprise.
(ibid., p. 6)
Accordingly, the message Golding conveys is that the boys come from a
world that is just as violent and hostile to human dignity as the new one in
which they are stranded; therefore, the only moral framework available to
them in dire conditions is to emulate that of the world they already know,
hence the camouflaging of their faces to attack their enemies and the insidious
and dangerous power hierarchies that emerge on that island.
It is well known that children emulate the adults in their lives. In today's
world, we simply need to read a newspaper or turn on the television to witness
global political conflicts that continue to destroy the infrastructures of several
countries, especially in the Middle East. We see imperialist governments that
talk about collateral damage when women and children are killed in wars that
make no sense. Victims of war are often reduced to objects so that there is less
guilt on the part of those who extinguish lives without a thought to the fact
that those who died were someone's parents, mothers, fathers, and children.
On the news each day, we witness suicide bombers creating havoc in the streets
of Iraq and Afghanistan and the homes of Palestinians being bulldozed. We
CYBER MISCONDUCT: WHO IS LORD OF THE BULLIES?
7
have witnessed people living in squalid refugee camps in which generations
of children live and grow up in extreme poverty with no home, school, or
country -- and no one who particularly seems to care. We hear about children
in Uganda and Sierra Leone who were kidnapped by adults and forced to
commit murder and rape or mutilate those thought to be "the enemy." We
hear of children kidnapped from public playgrounds or their own backyards
in Western countries, with their bodies turning up raped and murdered -- by
adults. We know about child pornography and its perpetration on the Internet
yet are helpless to eradicate it.
We view Hollywood movies in which actor Bruce Willis, for example, callously shoots off a person's arm and makes him run for his life knowing a gun
is focused on his back. We repeatedly witness school shootings in which the
perpetrators are students who were bullied or adults involved in school shootings who had difficulties in their lives and learn that when those perpetrators
sought help, the system failed them (Dedman, 2000).
Consider the Holocaust or the genocide in Bosnia, Rwanda, or Darfur in
which powerful governments took little action to stop the violence for long
periods of time. Consider, too, the mere lip service that many governments
pay to constitutional and human rights, even when it comes to protecting or
prosecuting their own citizens. Given such realities, it seems clear that Golding's boys could very well have come from such a world and imitate its powers on
an island with no adults.
Similarly, adults fail to protect Vernon in Vernon God Little after his friend Jesus retaliates against his classmates. Vernon, the narrator, is scapegoated by community members who believe he supported Jesus' actions, although he is
entirely innocent. Vernon is as vulnerable as he is intelligent, but he is also
inexperienced. He tries to run away from it all but realizes that people's minds
are already made up. The media has sensationalized his role in the tragedy,
handing down a sentence that even judges cannot reverse.
The second opening quote, the "judges would shit their pants laughing," is
expressed by Vernon, who becomes resigned to the fact that adults in this world
are the greatest bullies of all -- the worst culprits in modeling violence through
television, Hollywood movies, and sensational news stories. In his opinion,
although the judges and even a jury might understand his innocence, they may
not be able to stand up against the public outcry for a scapegoat. Further,
although judges understand that society systemically fosters and sustains the
forms of violence they must adjudicate on a regular basis, they are bound by
law and precedent and have less room to maneuver than people think (Case,
1997).
The most common complaint from victims of bullying and cyberbullying is
that schools generally put up a "wall of defence" (Shariff, 2003) through which
they imply that the victims brought the bullying on themselves and that cyberbullying is a parental responsibility because it takes place outside the school on
personal computers and cell phones bought by parents. School officials often
argue that they already have antibullying programs in place, which absolves
8
CONFRONTING CYBERBULLYING
them from doing more to protect victims. Moreover, few lawsuits reach the
courts. Most are settled out of court because of the expense caused by delays
school-board lawyers implement and the added difficulty of establishing tangible harm when injury from bullying is psychological rather than physical. I
address all these issues in greater detail in upcoming chapters.
Antiauthority Cyber Expression
A second form of student expression, antiauthority cyber expression (which is
also commonly referred to as cyberbullying), has recently garnered substantially more attention than peer-to-peer bullying. There have been stronger calls
for action from school and government officials, teachers and teachers' unions,
because this form of cyberbullying involves student postings on social networking sites where the focus of discussion is teachers or school officials. Although
most young people use social networking sites to do just what the name implies --
engage in enjoyable social conversations -- some students use them to demean
and put down their teachers or school administrators, joke about them, modify
photographs, and invite insults and comments from other students. As I have
mentioned, there is disagreement among students (supported by civil libertarians and some parents) and school authorities as to whether this form of online
student expression constitutes cyberbullying. For the purposes of this book, I
believe it is important to discuss it as a form of cyberbullying because it has
garnered so much attention and concern from educators and policy makers that
in turn affects computer use by all students. The power differential involved in
this form of student online communication is reversed. The "victims" of such
expression are teachers, school principles, and college and university professors
(authority figures) who are disempowered because they have little control over
who sees the online comments about them. Because the jury is still out as to
whether this form of student expression constitutes cyberbullying, I also refer
to it as "antiauthority cyber expression" or "antiauthority online expression."
The media have described teachers and their unions, as well as government and
school officials, as being powerless at the mercy of such "cyber brats." The issue
is increasingly, and globally, depicted in news reports as a "battle." Consider
the following headlines:
r "Cyberbullying targeting teachers: poll" (Leong, 2007)
r "A gift from the devil: Worry about on-line activities" (Soloyon, 2005);
r "Cyberbullying: The Internet is the latest weapon in a bully's arsenal"
(Leishman, 2002)
r "Internet gives teenage bullies weapons to wound from afar" (Harmon,
2004)
r "Cyberbullying blighting our lives" (Reading Evening Post, 2006)
r "Teachers declare war on cyberbullying" (Brown, 2007)
r "School war against the bullies brings academic success" (Asthana, 2007)
r "Regina bylaw to target cyberbullies" (CBC News, 2006)
CYBER MISCONDUCT: WHO IS LORD OF THE BULLIES?
9
r "Web giants like YouTube are being urged to get tough with the cyberbullies that use their sites to make pupils' and teachers' lives a misery" (Goff,
2007)
r "Foiling cyberbullies in the new Wild West" (Franek, 2006)
What concerns civil libertarians is that we might also sacrifice innocent students, like Vernon, who are using technology in responsible ways and, in some
cases, simply stating truths, making political statements, or making their opinions known online, believing that they have the constitutional right to do this.
The words Vernon uses to describe the judicial system as being part of the
problem and as powerless to help him prove his innocence might be couched
in vulgar terms as shown in the quote at the beginning of the chapter; however,
he makes an important point that ought to be given significant weight.
As school authorities and teachers' unions call for governments to legislate suspensions and punishment for this type of expression, it is important to
remember that the judiciary interprets the law within similar normative frameworks and contexts that inform societal hegemonies (Gramsci, 1971, 1975). In
fact, some would argue they are part of the system that perpetuates the very
hierarchies that sustain prejudices in society and that ultimately contribute to
the forms of cyberbullying that we see expressed by teenagers (Ehrensal, 2003).
Judges make their rulings on the basis of the facts of each case, but in doing so,
they often accept social or normative constructs that are already embedded in
legal language (Ehrensal, 2005; Lankshear & Knobel, 2006). In this regard, the
courts are merely another arm of the influential power base that governs public institutions such as schools. When normative constructs go unquestioned,
courts might tacitly legitimate them, including taken-for-granted assumptions
about children, school, free speech, and authority. Often they do this by refusing
to open the floodgates to litigation. In educational matters, courts have often
deferred to the expertise of educators, stating that courts do not get involved in
matters of "public policy" (Jafaar, 2002). Given that cyberbullying is an issue
that has not yet been addressed to a great extent, some judiciaries may adopt
such an approach to avoid inviting more lawsuits.
In this regard, the law wields power, both in terms of the decisions courts
render and the constructs that they subtly endorse. To understand legal power,
it is important to look at the language of law, for in law, language is power.
Hence the perspectives of critical theorists and pedagogues such as Giroux
(2003), McLaren (1998), Lankshear and Knobel (2006), and Ehrensal (2003,
2005) draw attention to the way in which the courts conceptualize and describe
learning and behavior in their reasons for judgment. This may apply to constructs of cyberbullying, especially in its antiauthority forms, and how, in legal terms, it might ultimately become defined and embedded in legal precedent.
Through the lens of critical theory and cultural studies of law, it is essential to examine the assumptions that judges make about educator authority and the
fiduciary relationships of trust between teachers and their students and to examine how these relationships impinge on and restrict free speech and learning.
10
CONFRONTING CYBERBULLYING
Once a landmark court decision in an emerging area such as cyberbullying is
handed down, the doctrine of stare decises (adherence to precedent) ensures that most future decisions adhere to the landmark precedent unless the court can distinguish a case as sufficiently different in nature to move away from
precedent. In this regard, the courts have a powerful influence on shaping governmental policy and practice. Schools, as government agents, must in turn
adhere to the standards set out by the courts.
There is no doubt that the landscape, as observed by one learned judge ( Hill
v. Church of Scientology of Toronto, 1995), has changed so dramatically that it is difficult to know where the boundaries of authority end.
The landscape upon which the line where the balance tips from protected speech for students to permissible punitive power for school administrators has changed dramatically.
The internet marks that landscape change as dramatically as the Front Range marks the end of the Great Plains.
( Beidler v. North Thurston School District Number 3, 2000)
To reiterate, although many young people use technologies in what adults perceive to be a responsible manner, some take advantage of this seemingly unsupervised space as license to say and do what they want. Yet this is where the
crux of the dilemma resides. What constitutes responsible discourse or expression (online or otherwise), and who decides what content and forms of online expression ought to be limited? Further, once there is agreement (which is a challenge in itself), how and to what extent can such speech be limited? What criteria exist to determine these invisible boundaries in a cyber society? Moreover, as rapidly evolving technologies are increasingly integrated into our everyday lives, our children are growing up with a range of technological tools and resources that were not available to the baby boomer generation when we grew
up. Consequently, although some adults and corporations are in the business of
creating, building, and making available such tools, online social networking
tools popular with young people are less easily embraced or understood by the
average parent, teacher, or lawmaker.
With adult discomfort in the use of technologies comes suspicion, a feeling of
exclusion, fear of change, and fear of a loss of control over the normative status
quo. There is a yearning to return to the "good old days" when children did
what they were told in manageable physical spaces because the consequences
(including even corporal punishment) were clear. As this fear takes hold, it
becomes easier to blame the tools -- technologies ironically created by adults --
and to blame the kids for the way they use these tools, incorporating forms
of expression that are offensive and disturbing to a public audience of adults
(Churchill, 2007).
It is no wonder that antiauthority forms of expression continue to become
increasingly lewd and obscene. Such expression is a call that society ought to
heed. Although one could argue, as in the Golding's first premise and Neil
Boyd's (2000) book The Beast Within, that people are naturally aggressive,
CYBER MISCONDUCT: WHO IS LORD OF THE BULLIES?
11
there is also substantial evidence, as I show in Chapter 5, that people can be
socialized to identify and act in different ways. Hence, as McMorrow (2007)
observes, the world of Lord of the Flies is an extension, not a breakdown, of the adult world from which the children come. Similarly, I argue in this book that student behavior in cyberspace is simply an extension of the physical world
in which children live:
Thus, the world of the Lord of the Flies does not represent the utter breakdown in the legal normative framework of the adult world from which the children come; on the contrary, it is its logical extension. A normative order centred on the idea that might makes right prevails not because it is the only type of normative order possible but because it resonates most with the boys' experience and expectations of the world. In contrasting the actions of characters like Piggy and Simon with the other boys on the island, the fact that certain boys subject their behaviour to a different set of norms than others attests to this normative plurality and heterogeneity among the group. Piggy and Simon serve as living examples that other worlds are possible, even if those other normative worlds intersect and interact with the predominate normative worlds to which the other boys subscribe.4
(ibid., emphasis added)
It is this diverse nature of children, people, normative structures, global societies, and ultimately the law that I focus on in this book. I want to illustrate
that the calls at national and global levels for positivist approaches are mis---
guided because none of them considers the broad range of social, political, economic, biological, and normative influences that come into play. What is more,
I emphasize that a pluralistic legal approach is feasible, and in fact desirable,
because it provides the best possible opportunities to address the roots of the
issues that reside in deeply embedded forms of discrimination and power hierarchies in every society. Moreover, I proffer that there are ethical, educational,
and legally defensible approaches that show greater promise in addressing the
disturbing forms of bullying in which human beings are capable of engaging,
both in the physical world and in cyberspace.
Hence, one of my objectives is to illustrate a larger context for the dilemma of
controlling students in cyberspace. Substantial pieces of this puzzle are missing.
These gaps are represented by our lack of attention to student perspectives --
to students' autonomy, identity formation, socialization, and their capacity to
take responsibility and contribute to lawmaking. Moreover, it is important to
raise awareness of the range of stakeholder influences and power hierarchies
that inform, contain, and attempt to control the forms of knowledge to which
children are exposed, as well as how and what children in turn express as knowledge or normative discourses. As most high school teachers and parents of teenagers would acknowledge, the vocabulary of popular discourse among
adolescents and teens has evolved to incorporate numerous racial, homophobic,
and sexist slurs. These are embedded to such an extent in young people's music
and interaction that although adults may roll their eyes in frustration, they
reluctantly ignore and accept them as part of normative interaction among
12
CONFRONTING CYBERBULLYING
youth. This does not always have to be the case. There is a point at which such
discourse can cross the fine line to become bullying or cyberbullying. I address
this issue in greater detail in Chapter 2.
A Global Issue
Cyberbullying is not restricted to North America. Governments and schools
globally are grappling with the issue of how to address it. Consider the following
online forms of expression and their devastating impact on students and teachers. As the examples show clearly, few countries are exempt. In Japan, a young
girl was murdered after receiving a threat on a contentious Web site (Associated
Press, 2004). Satomi Mitarai, twelve, bled to death in a study room after her
neck was cut open with a cutter knife in 2004 by her closest eleven-year-old
friend, who informed police that the dispute arose on instant messaging. The
accused admitted to summoning Satomi out of their homeroom classroom with
the intention of killing her. The Japan Times reported that the girls each had a Web site and often used their personal computers to communicate via text messaging. Two years later, on November 6, 2006, the minister of Education, Culture, Sports, Science, and Technology (MEXT) in Japan received an anonymous e-mail warning him of a potential suicide due to netto ijime (cyberbullying).
This incident made the government aware for the first time that cyberbullying
was alive and well in Japan. The suicide note had an enormous impact on the
Japanese administration because there had been many previous suicides from
traditional bullying (Senoo, 2007).
In China, a middle-school teacher in Foshan Guangdong reported that three
photographs of his face with a naked human body, the body of a monkey and
the body of a chicken respectively had been posted online, in the Foshan Daily
Forum. It took the police forty-eight hours to find the perpetrator, a second-year high school student who went by the name of Xiaorong. The student admitted to downloading his teacher's pictures from school's Web site. He searched pornography and animal pictures online and used Photoshop software to combine several photographs. He claimed that he did not know he had broken
the law, and like some of the North American and British cases that I discuss
later, perceived that his actions would be received as a joke. He argued the
photographs were not meant to harm his teacher at all. He simply wanted to
make his friends laugh (Zhang & Wei, 2007).
In Canada, David Knight, a student who had endured traditional bullying
throughout his elementary and secondary school years, was told to check a
certain Web site originating in Thailand. To his horror, the Web site was titled,
"Welcome to the page that makes fun of Dave Knight." This was a clone of a
Web site created by his peers in Canada that described him as a pedophile and
sexual predator, inviting online viewers to post derogatory insults next to his
photograph.
In India, students sent the following e-mail to a rival school team: "If u think
they r hot . . . Well, let me tell u they're not They're ugly, they're fat, they look like ratz!!!! Even alienz look better dan dat!!!!!"
CYBER MISCONDUCT: WHO IS LORD OF THE BULLIES?
13
In March 2007, a group of Australian schoolboys filmed themselves sexually
abusing and degrading a female classmate. Their film was uploaded onto the
YouTube Web site. The film showed twelve youths surrounding a seventeen-year-old girl, who has a mild mental disability, bullying her to perform sex acts,
urinating on her, and setting her hair alight. The education minister in southern
Victoria, the state where the attack took place, decided that the state's 1,600
public schools would block access to YouTube. Her comments are reported
to say, "The government has never tolerated bullying in schools and this zero
tolerance approach extends to the online world" (Bartlett, 2007).
In England, a teacher's life was threatened on YouTube, resulting in demands
by Britain's largest teachers' union for the government to ban YouTube. Moreover, in Canada, there has been enormous public outcry relating to student
comments about teachers on social networking sites such as Facebook. Students
posted online comments about their teachers masturbating in class; teachers
were described as pedophiles, having didactic teaching styles, being homosexual
and lesbian, and having bad hygiene and unusual dressing habits. In response,
the offending students were suspended from schools, banned from field trips,
and banned from using technologies at school. In Ontario, the result was a
heated student protest supporting freedom of expression. The protest turned
violent and had to be quelled by police (Chung, 2007). These incidents resulted
in a resolution by the Canadian Teachers' Federation to develop a task force to
understand the issues (Canadian Teachers' Federation, 2007).
In each case, Canadian, American, and British students, like their Chinese counterpart Xiaorong, insisted their comments, even those that included
graphic sexual detail, were not meant to hurt teachers but were posted to amuse
friends. In Canada, a recent survey by the Ontario College of Teachers disclosed
that 84 percent of Ontario teachers believe they have been cyberbullied or made
fun of online (Ontario College of Teachers, 2007).
CONCLUSION
Although some legal considerations relating to cyberbullying are discussed
briefly in Chapter 7 of my book CyberBullying: Issues and Solutions for the
School, the Classroom, and the Home (Shariff, 2008), this book undertakes a more in-depth examination of legal principles and doctrines that might affect educational policy decisions and practice. That said, however, I limit the legal
technicalities to engage in contextual analysis and explanations that ensure the
discussion is not too legal for educational policy makers and practitioners. I
want those educational professionals to gain the greatest benefit from learning their legal rights and responsibilities, and the rights of their students in
cyberspace.
I also believe that legal practitioners and anyone interested in the impact of
law and technologies on educational policy and practice and on the way we
construct and interpret education in a knowledge society will find significant
14
CONFRONTING CYBERBULLYING
value in this book. If I can help readers approach the issues with a new or
sufficiently adjusted lens through which to conceptualize the legal and policy
issues, I will have succeeded in my quest.
Given that my research has expanded to international levels, I provide case
examples and emerging information on legal responses that are being implemented in various countries such as Japan, China, India, European nations,
Australia, New Zealand, Britain, the United States, the United Kingdom, and
Canada. By way of caveat, however, I caution readers that we are currently
in the early stages of legal research on cyberbullying. Many countries have
only recently become aware of the fact that cyberbullying exists. Some are
only just beginning to recognize the enormous potential of online expression
(when not redirected in positive ways) to undermine learning and social development among children and youth. Although this ought to raise concerns, I do
not want to raise fears in the minds of educators and policy makers. I strongly
believe that the study of cyberbullying using a more substantive legal approach
will demonstrate educational and ethical opportunities that allow all of us to
transform negative student online expressions into collaborative and proactive
learning and social initiatives. Proactive responses can help us take advantage
of the infinite resources such technologies provide. It is therefore incumbent on
us as educators to seize these opportunities instead of focusing too heavily on
the dark side of student online communication.
I believe this is important not only from the perspective of reducing or curtail---
ing cyberbullying, but also because it will help educators, government policy
makers, and legal practitioners realize that the Internet and communications
technologies are here to stay and that education will inevitably be increasingly
delivered through the use of these technologies. If we cannot "control it" we
will need to ensure that technologies do not control us. To that end, I believe
it is important to draw attention to the opposing mindsets that adults, compared with young people, bring to their conceptions and use of the Internet. I
address these mindsets in upcoming chapters to highlight the ways in which
governments and schools continue to apply outdated approaches to controlling
cyberspace. My use of the plural "technologies" compared with the use of the
singular "it" is purposeful and will make sense to readers when I discuss the differences between adult and student mindsets in conceptualizing and working
with new technologies.
Cyberspace cannot be controlled, and traditional school management techniques no longer work. Technologies can, however, provide many useful and
collaborative avenues for educators and their students to engage in rule making
and learning. It is for these reasons that I place greater attention on institutional and educator responsibilities that reside in substantive law than positivist and
punitive approaches that reside in criminal law. Hence I argue against knee-jerk reactions to cyberbullying (or online antiauthority student expression), no
matter how insulting and defamatory they might be. Although many aspects
of cyberbullying are clearly criminal in nature and would most likely be subject to prosecution if brought before the courts (such as threats of violence,
CYBER MISCONDUCT: WHO IS LORD OF THE BULLIES?
15
criminal coercion, terrorist threats, stalking, hate crimes, child pornography,
and sexual exploitation), I have focused greater attention on the institutional
responsibilities of schools to educate students to become contributing and civic---
minded citizens. I advocate avoidance of legal avenues that put young people
through the criminal justice system, along the lines of Robert DiGuilio's (2001)
frustration that we "medicate" and "litigate" students far too much instead of
educating and caring for them.
Policy Guidelines
By reviewing established and emerging law, I draw attention to a need for guidelines that will help schools adopt educational means to prevent and reduce
cyberbullying. Early indications suggest that zero-tolerance suspensions and
school and governmental responses tacitly condone cyberbullying and perpetuate the problem by removing the focus from its underlying systemic causes and
attempting to control its symptoms. I propose a policy approach grounded in
substantive law, legal pluralism, and critical pedagogy that supports dialogue,
preventative and proactive measures that will better enable children to learn and
communicate in inclusive and nondiscriminatory school environments (physical
and virtual).
Accordingly, my goal is to raise awareness of the key dilemmas that confront
schools, students, and their parents, with a view to encourage reconceptualization of cyberbullying toward the development of proactive and educationally and legally defensible responses. The Internet and digital literacies have
become part of young people's lives, their social relationships, and their learning. I present approaches in this book that I hope will facilitate this learning
in school environments -- both physical and virtual -- that are conducive to
children's well-being and development as civil-minded and socially responsible, contributing citizens of a global society. It is of crucial importance that
children and adults become familiar with their rights and their legal responsibilities to engage in democratic society. I propose that we engage young people
to develop the rules, codes of conduct, and legislation to meet constitutional,
human rights, and legally pluralistic frames of reference. More specifically, the
policy guidelines are informed by the following legal considerations.
Legal Considerations
Within the context of two forms of cyberbullying, peer-to-peer and antiauthority cyber expression, this book joins a body of emerging work on legal issues
relevant to cyber misconduct and its impact on student safety and learning in
the school context. Most cases are from the United States and Canada (Balfour,
2005; Servance, 2003; Willard, 2003), although I also bring in specific examples
of responses (legal or policy) that are beginning to surface in various countries.
As already mentioned, at this stage, my legal research in other countries is just
beginning. It builds on my own previous work that examines the legal considerations relating to defamation and cyber libel; freedom of expression and safety
under the Canadian Charter of Rights and Freedoms; Canadian human rights
16
CONFRONTING CYBERBULLYING
law and American civil rights law (Title IX) on Internet sexual harassment;
potential school liability under Canadian and American tort law; and finally
international conventions relating to children's rights (Shariff, 2004; Shariff & Gouin, 2005; Shariff & Strong-Wilson, 2005).
North American laws are largely derived from British common law, which
continues to be applied in most postcolonial countries across the globe. Therefore, although I rely for the most part on the North American jurisprudence
and legislation in this book, the policy guidelines that I develop to inform
solutions to these issues are pertinent to the international context. Countries
such as India, Japan, Britain, Australia, South Korea, and New Zealand work
within similar legal frameworks and can also benefit from an appreciation of
applicable legal frameworks and judicial trends. Research projects are emerging
worldwide to examine how young citizens in various countries are adapting to
and using technology. The way in which schools as institutional agents of the
political and social orders of each country respond also has yet to be assessed.
As far as my own international research project on cyberbullying is concerned
(http://www.cyberbullying.co.nr) I will, subsequent to publication of this book,
be working with international collaborators to compile a separate and updated
publication. Our publication, to be launched in 2008--9, will contain focused
chapters on the profile, extent, and responses taking place in each country
involved in our project. Our edited publication will include academic papers
to be delivered at an international conference to be held jointly with NetSafe,
a nonprofit organization in New Zealand, in July 2008.
In the meantime, it is nonetheless important to consider how North American
and British courts have addressed the complexities of free expression, privacy,
cyber libel, and responses to student expression, especially in terms of the legal
obligations to supervise expression on and off campus. Given that so few cases
on traditional bullying have been settled out of court without going to trial,
even fewer precedents on cyberbullying exist at the time this book was written. Murphy's Law might dictate that as soon as this book hits the presses, a
landmark case on cyberbullying will surface and set a legal precedent. If that
happens, the new decision will be reported in journals or book chapters that
follow and will add to the foundation that I provide here. For now it is possible
to seek guidance from thousands of cases involving negligence in supervision
on school playgrounds and field trips and cyberlibel cases involving adults and
Internet use (tort law); sexual and homophobic harassment and other forms of
discrimination under civil and human rights law; and freedom of expression
and privacy considerations under constitutional law, particularly in cases in
which the fostering of a positive school environment is concerned. These court
rulings, under established and emerging law, make it possible to extrapolate
and gauge the legal boundaries (or extent of authority and responsibilities) that
can be expected of educational stakeholders when dealing with cyberbullying
or cyber misconduct. If we can find consistencies or trends in judicial decisions regarding the institutional and professional responsibilities of adults in
school contexts and detect shifts in judicial approaches to assessing on-and
CYBER MISCONDUCT: WHO IS LORD OF THE BULLIES?
17
off-campus technology use and supervision, we can inform the development of
a framework of standards to address the existing policy vacuum.
Tort Law
The first of these legal frameworks is tort law (or the law to correct "wrongs"
committed intentionally or unintentionally; Linden & Klar, 1994). There are
two areas of tort law relevant to cyberbullying of peers and authority figures:
libel and negligence. Given that there is so much concern among school authorities about the antiauthority version of cyberbullying on social communication
networks, I begin my legal review in Chapter 3 by taking a look at the issue of
libel as a tort -- or wrong committed intentionally or unintentionally -- and the
impact of libelous comments on targets of such expression (teachers and school
authorities).
As seen from the international case examples earlier in this chapter, students
who post such comments insist that they have no intention of hurting or directly
communicating with the teachers and school officials whom they discuss online.
They explain that these comments were not meant to be read by school officials --
and constituted private conversations between friends. In that context, students
do not consider their actions to be cyberbullying because the teachers are not
the direct targets of harassment. Unlike peer-to-peer cyberbullying, for which
Web sites are intentionally set up for the purpose of drawing victim's attention to his or her flaws, the expression posted about teachers are not directed to them --
and therefore any harm done is unintentional. It is plausible to argue under tort
law, however, that depending on a variety of circumstances, a wrong can be done
to someone unintentionally (negligently) and that this can lead to liability -- or
a claim for compensation of the harm done. Clearly, most young people are
not aware that they risk legal liability in this way, which suggests the need to
educate them about how the law of torts can be applied. Few adults, with the
exception of those who work in law-related fields, are aware of the liability
issues involved in tort law. Upcoming chapters present the judicial perspective
as it relates to the extent of school supervision responsibilities and what this
might mean for supervision in cyberspace.
Constitutional Law: Freedom of Expression versus Safety and Privacy
My research to date has not disclosed any known cases specifically relating to
cyberbullying in the school context in Great Britain or in other parts of the
world. Not surprisingly, however, courts in the United States, a highly litigious
country, have already heard cases on cyberbullying and applied a triumvirate
of well-established U.S. judicial decisions relating to student freedom of expression, in the absence of legal precedents relating to cyberspace. I highlight the
key standards that have emerged from the judicial scrutiny of cyberbullying in
terms of the debate relating to student expression and limits on school supervision in Chapter 4. As I explain in that chapter, there have been a number of mixed court rulings on the extent of school responsibilities or expectations to interfere when students engage in forms of cyberbullying from home computers.
18
CONFRONTING CYBERBULLYING
Human and Civil Rights Jurisprudence: School Environment
It may be some time before the Supreme Court of Canada rules on the censorship
issues involved in cyberbullying because such cases are generally brought under
tort law for negligence and under human rights law. This does not suggest
that constitutional or quasi-constitutional considerations are not implied or
expected. A number of Canadian human rights and American civil law cases
on sexual harassment -- for example, Robichaud v. Canada (Treasury Board) --
have ruled that institutions are responsible for providing safe environments for
their employees even if the sexual harassment by a coworker occurs outside of
the workplace. These are discussed in Chapter 5.
One of the points I make in support of my arguments for an improved
understanding of law in education, particularly as it relates to cyberbullying,
is that just because law may not be obvious does not mean that legal rules do not
inform every aspect of social life and learning. As I work through and present
the range of applicable legal frameworks in this book, I provide evidence to
show why a singular, legally positivist approach to addressing cyberbullying
ignores the fact that various legal principles and normative rules work together
to influence how people act or express themselves in certain contexts. Hence,
there is the need to pay attention to young people's notion of identity, how that
identity changes on the Internet, and the agency that they use to communicate
and express themselves online compared with in cyberspace.
I argue that to change the way children behave online toward one another
and toward their authority figures, we are engaging in a law reform practice.
In doing so, it is essential to ask which existing laws and policies work best to
address considerations of agency, context, and identity. What we must ask ourselves is which policies are workable and how do we implement them? At the
end of the day, any policies grounding laws on the issue of cyberbullying must
be informed by the interactions of students themselves. At the same time, such
laws ought to respect students' autonomy but, more fundamentally, respect
their inherent human dignity. To that end, I present in my concluding chapter a
combination of legal standards and models that inform a critical legal literacy
and legally pluralistic approach to teacher education and professional development that I argue show greater promise to help educators navigate the policy
vacuum of cyberbullying.
Before we turn to these issues, I would like to introduce readers to a general
understanding of the nature of traditional bullying, its forms and profile, and the conditions under which it occurs, as it has been studied within the paradigms of
developmental psychology and sociology. The profiles of traditional and cyberbullying that I present in Chapter 2 establish the devastating impact of bullying
and cyberbullying, which have tragically taken the lives of many young people
through suicide and even murder. I have researched the subject sufficiently to
understand the deep and lasting psychological consequences of bullying and
cyberbullying on children and adults who are victimized, especially at the
hands of large groups of peers or unknown individuals on the Internet.
CYBER MISCONDUCT: WHO IS LORD OF THE BULLIES?
19
Although I fully support a need for some form of consequences for those
who engage in cyberbullying, I contend that we place too much emphasis on
positivist legal forms of discipline and punishment after the fact. I would like
us to think about long-term proactive responses that are rooted in the fundamental principles of democracy. These might not have immediate impact but
over time should make their mark more permanently. This approach will make
better sense to readers after they have an improved understanding of bullying
and its discriminatory nature. I proffer that in many educational institutions,
what some scholars describe as "systems of oppression" sustain racism, sexism, homophobia, and ableism and intersect and interlock (Razack, 1998) to
perpetuate bullying and marginalize some students more than others. When
considered in these terms, it becomes easier to appreciate why constitutional
and human rights considerations are more important to policy responses than
legally positivist responses that are generally rooted in criminal law. It is to this profile of bullying and cyberbullying that I now turn.
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Asthana, A. (2007, June 3). School war against the bullies brings academic success
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Balfour, C. (2005). A journey of social change: Turning government digital strategy into cybersafe local school practices. Paper presented at Safety & Security in a Networked World: Balancing Cyber-Rights & Responsibilities, Oxford Internet Institute, University of Oxford, England. Retrieved August 10, 2007, from http://www.oii.ox.ac.uk/
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Bartlett, L. (2007, March 29). Cyber bully concern grows [Electronic version]. cooltech.
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729468.htm.
Boyd, N. (2000). The beast within: Why men are violent. Vancouver, Canada: Greystone Books.
Brown, L. (2007, July 13). Teachers declare war on cyberbullying [Electronic version]. TheStar.com. Retrieved August 13, 2007, from http://www.thestar.com/article/
235675.
Canadian Teachers' Federation. (2007). Communications technology concern resolution. Toronto: Author.
Case, R. (1997). Understanding judicial reasoning: Controversies, concepts and cases.
Toronto: Thompson Educational.
CBC News. (2006, April 25). Regina bylaw to target cyberbullies [Electronic version].
CBC News. Retrieved August 13, 2007, from http://www.cbc.ca/canada/saskatchewan/
story/2006/04/25/bullying-regina060425.html.
Chung, M. (2007, March 25). Online comments were "inside joke." Posts meant for
friends only, teen says [Electronic version]. TheStar.com. Retrieved August 15, 2007, from http://www.thestar.com/article/195823.
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CYBER MISCONDUCT: WHO IS LORD OF THE BULLIES?
Churchill, A. (2007). Don't blame the Internet for cyberbullying [Electronic version]. The Gazette. Retrieved September 12, 2007, from http://www.canada.com/montrealgazette/
news/editorial/story.html?id=62b8e6a4-256f-457c-831b-9166b9583809.
Dedman, B. (2000, October 16). Schools may miss mark on preventing violence [Electronic version]. Chicago Sun-Times. Retrieved August 12, 2007, from http://www.
ustreas.gov/usss/ntac/chicago sun/shoot16.htm.
DiGiulio, R. C. (2001). Educate, mediate, or litigate? What teachers, parents, and administrators must do about student behavior. Thousand Oaks, CA: Corwin Press.
Ehrensal, P. A. L. (2003). The three faces of power: U.S. Supreme Court's legitimization of school authority's parental, police, and pedagogic roles. Educational Administration Quarterly, 39(2), 145--163.
Ehrensal, P. A. L. (2005). Law, legislation, policy and power: A critical discourse analysis approach to school law. Paper presented at the First Congress of Qualitative Inquiry, University of Illinois, Urbana--Champagne.
Franek, M. (2006). Foiling cyberbullies in the new Wild West. Educational Leadership, 63(4), 39--43.
Giroux, H. (2003). The abandoned generation: Democracy beyond the culture of fear.
New York: Palgrave Macmillan.
Goff, H. (2007, April 16). Websites urged to act on bullies [Electronic version]. BBC
News Online. Retrieved August 13, 2007, from http://news.bbc.co.uk/2/hi/uk news/
education/6539989.stm.
Golding, W. (1959). Lord of the Flies. New York: Capricorn Books.
Gramsci, A. (1971). Selections from the prison notebooks of Antonio Gramsci. London: Lawrence Wishart.
Gramsci, A. (1975). Letters from prison (L. Lawner, trans.). London: Jonathan Cape.
Harmon, A. (2004, August 24). Internet gives teenage bullies weapons to wound from
afar [Electronic version]. New York Times. Retrieved August 26, 2004, from http://
www.nytimes.com./2004/08/26/education.
Jafaar, S. B. (2002). Fertile ground: Instructional negligence and the tort of educational malpractice. Education & Law Journal, 12(1), 1--132 at 131--132.
Lankshear, C., & Knobel, M. (2006). New literacies: Everyday practices and classroom learning (2nd ed.). Maidenhead, England/New York: Open University Press.
Leishman, J. (2002, October 10). Cyberbullying: The Internet is the latest weapon in a bully's arsenal [Electronic version]. CBC News. The National. Retrieved January 27, 2003, from http://cbc.ca/news/national/news/cyberbullying/index.html.
Leong, M. (2007, August 27). Cyberbullying targeting teachers: Poll [Electronic version]. National Post. Retrieved August 28, 2007, from http://www.canada.
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Linden, A. M., & Klar, L. N. (Eds.). (1994). Canadian tort law: Cases, notes & materials (10th ed.). Markam and Vancouver, Canada: Butterworths Canada.
Macdonald, R. A., & Sandomierski, D. (2006). Against nomopolies. Northern Ireland Legal Quarterly, 57, 610--633.
McLaren, P. (1998). Life in schools: An introduction to critical pedagogy in the foundations of education (3rd ed.). New York: Longman.
McMorrow, T. (2007). Lord of the bullies: Advocating a student-centred approach to
legal research into cyberbullying. Unpublished paper submitted for graduate course at McGill University, Montreal, Canada.
CYBER MISCONDUCT: WHO IS LORD OF THE BULLIES?
21
Ontario College of Teachers. (2007). COMPAS State of the Teaching Profession
[Electronic version]. Professionally Speaking, the Magazine of the Ontario College of Teachers. Retrieved August 28, 2007, from http://www.oct.ca/publications/PDF/
survey07 e.pdf.
Pierre, D. B. C. (2003). Vernon God Little. London: Faber & Faber.
Razack, S. (1998). Looking white people in the eye: Gender, race, and culture in courtrooms and classrooms. Toronto: University of Toronto Press.
Reading Evening Post. (2006, June 1). Cyber bullying blighting our lives [Electronic version]. getreading. Retrieved August 13, 2007, from http://www.getreading.co.uk/
news/2001/2001939/cyberbullying blighting our lives.
Senoo, Y. (2007). Netto-ijime (cyberbullying): Bullying moves to cyberspace. Unpublished term paper for EDEM 609 Issues in Education Masters course, Department of
Integrated Studies in Education, Faculty of Education, McGill University, Montreal, Canada.
Servance, R. L. (2003). Cyberbullying, cyber-harassment and the conflict between
schools and the First Amendment. Wisconsin Law Review, 6, 2003, 1213 at 1244.
Shariff, S. (2003). A system on trial: Identifying legal standards for educational, ethical and legally defensible approaches to bullying in schools. Unpublished doctoral dissertation, Simon Fraser University, Burnaby, Canada.
Shariff, S. (2004). Keeping schools out of court: Legally defensible models of leadership to reduce cyberbullying. Educational Forum. Delta Kappa Pi, 68(3), 222--223.
Shariff, S. (2008). Cyber bullying: Issues and solutions for the school, the classroom, and the home. Abington, England: Routledge (Taylor and Francis Group).
Shariff, S., & Gouin, R. (2005). Cyber-dilemmas: Gendered hierarchies, free expression and cybersafety in schools. Paper presented at the Safety & Security in a Networked World: Balancing Cyber-rights & Responsibilities, Oxford Internet Institute, University of Oxford, England. Retrieved August 9, 2007, from http://www.oii.
ox.ac.uk/microsites/cybersafety/?view=papers.
Shariff, S., & Hoff, D. L. (2007). Cyberbullying: Clarifying legal boundaries for school supervision in cyberspace [Electronic version]. International Journal of Cyber Criminology. Retrieved August 9, 2007, from http://www40.brinkster.com/ccjournal/
Shaheen&Hoffijcc.htm.
Shariff, S., & Strong-Wilson, T. (2005). Bullying and new technologies: What can teachers do to foster socially responsible discourse in the physical and virtual school environments? In J. Kincheloe (Ed.), Classroom teaching: An introduction (pp. 219-- 240). New York: Peter Lang.
Soloyon, C. (2005, February 2). A gift from the devil: Worry about on-line activities.
Gazette, p. A2.
Willard, N. (2003). Off-campus, harmful online student speech. Journal of School Violence, 1(2), 65--93.
Zhang, W., & Wei, J.-Y. (2007, July 22). The cyberbullying research (China II).
Hangzhou, China: Zhejiang University, funded by the Social Science and Humanities Research Council of Canada (SSHRC). Shaheen Shariff, Principal Investigator,
McGill University, Montreal.
SNERT . . . That's what some call the troublemakers of cyberspace. Attributed to
Kurt Vonnegut, the term stands out for "Snot-Nosed Eros-Ridden Teenager." It
concisely captures much of what many cyberspace deviants are all about. They
thumb their noses at authority figures and smear their discontent all over themselves and others.
(Suler & Philips, 1998)
This chapter is a reiteration of the background on bullying that I have provided
in my book on teaching and parenting issues (Shariff, 2008). It is important
that readers who are interested in the law and policy aspects gain insight into
the forms and complexities of bullying and cyberbullying. This is especially
important for legal practitioners, academics, and judges, because their understanding of its nuances could make an enormous difference in adjudicating cases
of cyberbullying, or even in negotiating settlements with parents and victims.
WHAT IS BULLYING?
Bullying among school children is certainly an old phenomenon, although it was
not until the early 1970s that it was made the object of systematic research. In
schools, bullying usually occurs in areas with minimal or no adult supervision.
It can occur within or around school buildings, although it more often occurs in
physical education classes, hallways, bathrooms, or classes that require group
work, as well as during after-school activities. Bullying in school sometimes
consists of a group of students taking advantage of or isolating one student
in particular and outnumbering him or her. Targets of bullying in school are
often pupils who are considered strange or different by their peers, making
the situation harder for them to deal with. Bullying can also be perpetrated by
teachers or instigated against them.
22
PROFILE OF TRADITIONAL AND CYBERBULLYING
23
Historically bullying was not seen as a problem that needed attention but
rather has been accepted as a fundamental and normal part of childhood
(Campbell, 2005; Limber & Small, 2003). In the last two decades, however,
this view has changed, and schoolyard bullying and cyberbullying are seen as
serious problems that warrant attention.
In the 1990s, the United States saw an epidemic of school shootings (the most
notorious of which was the Columbine High School massacre in Colorado).
This continued into 2006, when in Virginia and in Montreal, Canada, in separate incidents, two young men went on shooting sprees at two postsecondary
institutions, taking in their wake their own lives and those of peers and teachers. Although most of the youth who carry out these shootings take their own
lives, a commonality is that all of the perpetrators were, at some point in their
lives, victims of bullying by peers (Dedman, 2000).
In most cases, it was discovered that they resorted to violence only after
the school administration repeatedly failed to intervene, as in the case of the
shootings in Virginia and Columbine. As a result of these trends, numerous
antibullying programs and zero-tolerance policies have proliferated as schools
attempt to reduce and control bullying. According to Hoover and Olsen (2001),
up to 15 percent of students in U.S. schools are frequently or severely harassed
by their peers. They add that only a slim majority of fourth through twelfth
graders (55.2 percent) reported neither having been picked on nor picking on
others. Furthermore, bully--victim cycles are found in which individuals are both
bullies and victims (Ma, 2001; Pellegrini & Bartini, 2000; Schwartz, Dodge, & Coie, 1993; Schwartz, Dodge, Pettit, & Bates, 1997).
Numerous surveys of students have found that face-to-face bullying by peers
in school is a frequent experience for many children (Genta, Menesini, Fonzi,
Costabile, & Smith, 1996; Kumpulainen et al., 1998; Whitney & Smith, 1993).
One in six children report being bullied at least once a week (Rigby, 1997;
Zubrick et al., 1997), although that figure was as high as 50 percent if the
duration of the bullying is taken as lasting only one week (P. K. Smith & Shu,
2000). In another study, 40 percent of adolescents reported having been bullied
at some time during their schooling (Mynard, Joseph, & Alexander, 2000).
However, the percentage of students who report longer-term bullying of six
months or more decreases to between 15 percent and 17 percent (Slee, 1995;
Slee & Rigby, 1993).
Bullying has been understood and defined as an age-old societal problem,
beginning in the schoolyard and often progressing to the boardroom (Campbell, 2005; McCarthy, Rylance, Bennet, & Zimmermann, 2001). "Bullying" is
often defined by developmental psychologists as an aggressive, intentional act
or behavior that is carried out by a group or an individual repeatedly and over
time against a victim who cannot easily defend himself or herself (Campbell,
2005; Olweus, 2001; Whitney & Smith, 1993). Bullying is a form of abuse
that is based on an imbalance of power; it can be defined as a systematic
abuse of power (Rigby, 2002; P. K. Smith & Sharp, 1994). Bullying may be
physical, including behaviors such as hitting, punching, and spitting, or it may
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CONFRONTING CYBERBULLYING
involve browbeating language using verbal assault, teasing, ridicule, sarcasm,
and scapegoating (Campbell, 2005; DiGiulio, 2001; Slee & Rigby, 1993). It
involves a minimum of two people, a perpetrator and a victim. However, a
large number of people may be involved in an indirect manner as an audience.
These bystanders may be other students who witness the bullying event but
remain uninvolved. They are frequently afraid of becoming the next victim if
they do interfere. They often feel powerless and show a loss of self-respect and
self-confidence (Campbell, 2005; S. Harris & Petrie, 2002).
Canadian studies tell us that approximately 10 percent to 15 percent of
children are bullied or engage in bullying at least once a week.1 Bullying begins
in kindergarten, involves various degrees of violence, and comprises various
forms of harassment. Bullying can be physical or psychological, overt or covert,
random (indiscriminate) or discriminatory. For a variety of reasons, educators
may not recognize bullying for what it is, and victims sometimes find it difficult
to substantiate covert or psychological forms of bullying. This is because such
behavior is easily confused with teasing and generally occurs on playgrounds,
in hallways, and now most frequently in cyberspace (e-mail, text messaging,
Web sites), away from the watchful eyes of teachers or other supervisors.
Emerging litigation against schools indicates that victims and their parents
are prepared to sue schools for failing to protect them from bullying and cyberbullying. If schools are to keep students safe and avoid litigation, the first step is to learn how to recognize the various forms of bullying in the physical school
environment and, in particular, the conditions under which it occurs.
The Etymology of Bullying
Ironically, bullying began as a term of endearment. The Oxford University
Press dictionary notes that it originated in the 1600s as boel, meaning "lover of either sex" (Simpson & Weiner, 1989, p. 645). The dictionary also references a 1721 edition of Bailey that contains the word boolie, meaning "beloved." The word was also used to describe one's "brother" (ibid.). From lover to brother, the word eventually took on the meaning of close friendship as between good
buddies and companions. Implicit in this relationship was amiable teasing,
cajoling, and joking among friends. For example, Shakespeare prefixed "bully"
as a title -- for example, "Blesse thee, bully doctor" (ibid.).
British coalminers described coworkers as bullies and thus began an association with bullies as "rowdies" or "ruffians." By the late 1800s, bullying began
to refer to cowardice, weakness, tyranny, and violence.2 It also began to be
associated with gangs: "A gang of bullies was secretly sent to slit the nose of
the offender" (ibid., p. 646). By 1883, to act as a bully was "to treat in an
overbearing manner; to intimidate, overawe" (ibid.) or to "drive or force by
bullying; to frighten into a certain course" (ibid.).
The etymology says much about the problem of recognizing bullying. Its
transition from general roughhousing to hostile treatment highlights interesting parallels between the historical evolution of the word and bullying in contemporary schools. First, many researchers (Glover, Cartwright, & Gleeson,
PROFILE OF TRADITIONAL AND CYBERBULLYING
25
1998; Roher, 1997; P. K. Smith & Sharp, 1994; Tattum, 1997) acknowledge
that until the last twenty years or so, bullying in schools was widely accepted
as an unavoidable part of growing up. Smith and Sharp (1994) point out that
although the topic was addressed in novels such as Tom Brown's Schooldays,
almost no research on it was published outside Norway and Sweden until the
late 1970s when the Norwegian bullying expert Olweus (1978) published an
English version of his book Aggression in the Schools: Bullies and Whipping
Boys. As the etymology discloses, this is around the time that notions of bullying shifted to incorporate negative characteristics.
Bullying was not recognized as problematic in Britain and North America,
however, until the 1980s. In the army and university fraternities, bullying took
the form of "hazing" of new recruits. In the British boarding schools I attended,
new students were often put through a form of bullying known as "squashing"
by their prefects. Authorities were well aware that this took place but tolerated
it as a "toughening up" that rookies needed to build character. Similarly, with
playground bullying, there was an underlying assumption among teachers that
such behavior was acceptable because it forced quieter children to learn to
assert themselves.
Bullying or Teasing?
In the context of the etymology, it is important to explain why teachers may
not recognize teasing as bullying. Bullying has two forms: physical and psychological (which includes verbal teasing). Curiously, verbal bullying in contemporary schools fluctuates between terms of endearment and hostile treatment. For example, a significant amount of adolescent discourse occurs in the
electronic medium and is often influenced by lyrics in rap and grunge music
(Ashford, 1996). Drawing from such lyrics, teens might greet each other by
saying, "What's up, dawg?"(derived from African American rap lyrics). They
may chide a friend, "I'm going to kick your ass." They may tell a friend he's
"bad" (meaning he's "cool"). They may challenge a friend to roughhouse by
saying, "Bring it on F . . . Face" ("let's fight").
Much of this language, when directed at friends, is meant without harmful
intentions. Take, for example, a recent human rights bullying case, Jubran v.
North Vancouver School Distr. No. 44, in which Azmi Jubran, a high school
student of Iranian descent, suffered four years of incessant bullying at his North
Vancouver high school in British Columbia. After graduating, Jubran brought
a human rights claim against the school for failing to protect him from the
homophobic discrimination that comprised a large part of the bullying. He
insisted he was not homosexual but was harassed on the basis of his appearance.
One of Jubran's persecutors, referred to as "Mr. Richardson," testified that, in
high school, taunts that adults might interpret as homophobic are not always
meant that way when directed toward friends:
Mr. Richardson testified that the words used by the students were "part of the high school vocabulary," and words like "gay" were used to describe someone, something,
26
CONFRONTING CYBERBULLYING
or a situation that a student didn't like. Mr. Richardson testified that he himself used those words "all the time." He testified it would be common for a student to say: "that shirt is so gay" or the "long jump is so gay" if the student didn't like it. He also said that the words "queer," "faggot" and "homo" were commonly used as part of normal conversation, even among friends, as terms of endearment. He further testified that he still has a friend who says to him "what's up homo?" and that those words are used without reference to sexual orientation.
(C. Roberts, Jubran v. North Vancouver School Distr. No. 44, p. 7, emphasis added) This discourse emulates the amicable teasing among buddies in the early 1800s, such as "My over jolly bully-boy, let be" (Simpson & Weiner, 1989,
p. 645). Bullying begins to reflect the shift in its etymology from a "buddy"
relationship to its more hostile and overbearing character when identical words
and actions are directed toward someone who is not a friend. For example, the
words "homo" and "gay" make the transition from being terms of endearment
between friends to hostile words intended to harm. The testimony from Jubran
is again useful to illustrate how this happens. A number of his perpetrators,
referred to by their last names in the tribunal transcripts, gave the following
testimony:
Mr. Howard, Mr. Higgins, Mr. Kai and Mr. White all testified that when the words
were spoken by someone who was not a friend, the terms "dork," "geek," "gay," and
"faggot," were used interchangeably as words of insult or as a put-down. Their evidence was that the words were not intended to imply that Mr. Jubran was homosexual, and that neither they nor others who called Mr. Jubran those names were of the view that Mr. Jubran was homosexual. Mr. Howard and Mr. Kai denied that any of the "sting" of the words resulted from the fact that they related to homosexuality; they testified that the word were simply used as another form of insult.
(Judge Robertson, Jubran v. North Vancouver School Distr. No. 44, p.7)
This language used in two entirely different ways might explain why teachers
continue to tolerate verbal bullying. Although teachers try to stop students
using swear words and sexist language, they cannot monitor every word or
conversation.
Glover et al. (1998) report Boulton and Hawker's (1997) British study that
found teachers commonly look for physical injury and generally ignore verbal
bullying. In keeping with the popular adage "sticks and stones will break my
bones but words will never hurt me," they found many teachers turn a blind
eye to verbal bullying. Middle school students reported that teasing was the
most common aspect of the bullying they experienced (90 percent of the time),
and their responses suggest various reasons as to why teachers might tolerate
bullying. One student noted that "Teachers turn a blind eye to name calling
because they believe it doesn't hurt you" (Boulton & Hawker, 1997, p. 32).
Another observed, "It seems that action is only taken if someone is really hurt
[physically]," and a third complained, "Teachers want a school with no bullying
and so they pretend it doesn't exist" (ibid.).
PROFILE OF TRADITIONAL AND CYBERBULLYING
27
Other studies support similar findings,3 and although most researchers have
moved away from stereotypical views about bullying as simply a physical
assault,4 many teachers and students apparently still perceive bullying as physical and not verbal. For example, Glover et al. (1998) studied the responses of
British teachers and students in junior and secondary schools who were provided with a list of behaviors (including a range of physical activities such as
kicking, hitting, and shoving and verbal behaviors such as teasing, name-calling,
and threatening). In their study, a significantly higher proportion of responses
by teachers (90 percent) described physical behaviors as bullying compared
to verbal behaviors. Students also identified physical bullying as being more
serious than verbal bullying, but to a lesser extent than teachers did.
Moreover, most of the teachers who were interviewed believed children
should cope with teasing on their own. One teacher responded, "It happens
so much that I just tell them [the children] to get on with it. It's no good encouraging them to be too sensitive, they should learn to ignore it" (Glover et al.,
1998, p. 55). These results are significant, because teachers' perceptions of bullying affect how they respond to complaints, and students' perceptions of verbal
bullying as harmless may encourage them to participate in it.
These findings illustrate how important it is to ensure that educators and
the courts understand the complexities of bullying well enough to recognize
and appreciate the range of bullying behaviors and their effects. This is also
important to bear in mind when we turn to the profile of cyberbullying because
a significant amount is verbal with greater psychological ramifications than
physical bullying.
General Characteristics
Bullying entails overt or covert behavior and takes verbal or physical forms.
Good-natured horseplay and teasing escalate into bullying when victim(s) and
perpetrator(s) cease to agree when the behavior should stop and when a power
imbalance is created between them. Bullying generally involves a range of hostile
behaviors instigated by certain perpetrators to gain power and dominance over
others.
Girls and boys display similar levels of bullying. However, boys report bullying more often and generally engage in overt physical forms of bullying, whereas
girls tend to engage in covert psychological bullying (Crick, Grotpeter, &
Bigbee, 2002; Hall, 1999; Pepler & Craig, 1997; Rauste-Von Wright, 1992).
Nonetheless, there is now evidence of a trend in increased physical bullying
and violence by females.5 Tremblay (1991) suggests that the disparity between
genders is due to extensive focus on male aggression and lack of focus on female
aggression.6 The disparity in rates could also be explained by changes in the way
girls are socialized and how females are depicted in the media and in society --
another point to remember when we go to a discussion of gender differences
and cyberbullying.
Research suggests that male students are more likely to carry a weapon
onto school property and constitute 83 percent of all victims of school-related
28
CONFRONTING CYBERBULLYING
homicides or suicides. In addition, boys are more likely to fight among themselves, whereas girls fight with either sex. After extended periods of relentless bullying, victims of both sexes are more likely than students who are not
bullied to bring weapons to school for protection (DiGiulio, 2001; Olweus,
1993).
Current research identifies a broad consensus that the following general factors contribute to bullying in schools. Take note of these conditions because
they also exist in cyberspace and inform the profile of cyberbullying:
r There is always a power imbalance that favors the perpetrator(s) over the
victim.
r The perpetrators are often supported by a group of peers, some of whom
actively encourage the bully and others who watch but do nothing to help
peers who are targeted.
r Targeted students draw the negative attention of their peers and are
actively pushed out of the group and isolated (Crick et al., 2002; Schuster,
2001).
r Exclusion and isolation from the larger peer group fortify the power of the
perpetrator(s).
r The perpetrators' behavior is uninvited and unwanted by the victim.
r The perpetrators' actions are deliberate, repeated, and often relentless.
Why is the combination of power and exclusion so characteristic of school
bullying? Other types of violence may involve power but not necessarily exclusion. Take war, for example. War between countries or tribes involves power,
and prisoners of war might be isolated from their people, but that is not a
primary objective of war. In bullying, the perpetrator's primary objective is the
isolation and exclusion of certain peers, and as we will see in the profile of
cyberbullying, in cyberspace, teachers and other authority figures are also isolated and demeaned. The perpetrator's actions draw the support of the larger
peer group, increasing the victim's vulnerability. In addition, although not all
members of the group will support bullying, the frightening reality is that a
larger number of peers (an average of 30 percent; Olweus, 2001; Salmivalli,
Lagerspetz, Bj örqvist, Österman, & Kaukiainen, 1996) will support individual
bullies rather than help the victim. This is a key consideration to bear in mind
when we move to the profile of cyberbullying.
Other researchers agree that the most lethal aspect of bullying is the group
effect, which perpetuates and sustains abuse of individual victims (Bukowksi &
Sippola, 2001; Crick et al., 2002; Juvonen & Graham, 2001; Perry, Willard, & Perry, 1990; Salmivalli, 2001; Schuster, 2001). Perpetrators are generally driven
by the need for power and recognition to make up for a lack of confidence and
self-assurance. They crave acceptance. Recruiting the support of the peer group
by isolating and demeaning someone satisfies that need. Note at this stage that
I prefer to use the word "perpetrator" rather than the label of "bully" because
PROFILE OF TRADITIONAL AND CYBERBULLYING
29
a perpetrator initiates a certain action or actions in a specific context, whereas
labeling an individual as a "bully" gives the perception that such an individual
is a bad or "evil" person at all times -- it connotes a negative flaw in the person's character, whereas a perpetrator may only engage in bullying once -- he or she
may, as research has found, also be a victim of bullying. Hence for me it is
important that we move away from labels. Although I use "victim" and "target" interchangeably throughout this book, their use depends on the context
of the discussion. Suffice it to say that labels such as "disruptive," "aggressive," "evil," and "terrorist" essentialize and justify blame-laying and scapegoating.
Perpetrators and Targets
People often ask about the characteristics of kids who engage in bullying. Are
they the popular kids or the so-called losers? There is a discrepancy in the
research on this question. The National Crime Prevention Council (NCPC)
(1997) reported that perpetrators are generally unpopular, whereas a number
of more recent studies have confirmed that perpetrators exhibit high levels
of leadership and confidence and are often popular with peers and teachers
(DiGiulio, 2001; Katch, 2001; Olweus, 2001). DiGuilio (2001),7 for example,
contends that the instigators are popular with teachers because of their leadership skills and academic abilities. Unlike the stereotypical "bully" who is
perceived to be dejected and unpopular, perpetrators are often classroom leaders and peer tutors (Salmivalli et al., 1996) -- those whom teachers might assume
would defend victims rather than instigate or reinforce bullying. It is plausible,
however, that peer leaders who engage in bullying may not be as self-assured
as they seem. They may crave attention and take on peer leadership roles as a
way to gain prestige and power.
Targets may thus be chosen on the basis of whether they are perceived to
advance or hinder the effective functioning of the peer group. Individuals who
are perceived as "different" are singled out for exclusion, which then triggers
the bullying (Artz & Riecken, 1997; Katch, 2001; Olweus, 2001; Salmivalli,
2001).
To obtain more specific information on children's motivation to single out
and bully certain victims, Glover, Cartwright, and Gleeson (1998) interviewed
3,417 elementary and high school students in Britain. The students were asked
if and why they had engaged in specific antisocial behaviors, without having
to admit they had "bullied." The researchers were also assessing the reasons
children gave for discrimination. The greatest justification to bully someone
(14 percent for boys and 12 percent for girls) was based on whether the victim
was perceived as "too clever"(Glover et al., 1998, p. 27). A victim's looks
were another motivator (14 percent for boys and 13 percent for girls). Other
responses included the following: "I hadn't got on with her ever since primary
school. . . . I don't know why . . . it's the way he looks at me and makes me feel I don't like him" (Glover et al., 1998). Parental or peer pressure provided another
30
CONFRONTING CYBERBULLYING
motivation for victim exclusion: "we weren't allowed to mix with them"(Glover
et al., 1998). The author summarized his findings as follows:
r Ethnic background and religion are more frequently mentioned among older
males as reasons for bullying, whereas gender is more frequently the reason for discrimination by adolescent males as a male taunt (sexual harassment).
r Perceptions of being rich or poor and family background are of limited
concern, but the way people look and dress is a significant motivation to
bully, especially for girls.
r Boys attack hard workers more than girls in adolescence, but victim "clever---
ness" motivates students of both genders to bully until Grade 11. Learning
problems and lack of sporting aptitude are also motivations for boys to bully
until Grade 11.
r Being different causes 10 percent to discriminate with little reduction until
grade 11. This is especially true for students who are new to a school and
speak with different accents.
Once targets are identified, they are presumed to deserve the punishment and
"get what is coming to them." This justifies the exclusion that is a ubiqui---
tous aspect of bullying. Katch (2001) inadvertently discovered that children's
motivation to blame, exclude, and victimize begins as early as kindergarten:
When I first started audio-taping the children's play and talk, I cut out every discussion about exclusion. I thought it did not relate to my subject of violence. But when exclusion kept coming up, I decided to listen to those discussions, and I found that exclusion and violence seemed to be inextricably intertwined. Excluding someone from the group seemed to justify violence, both by the excluded child and by those who exclude him, just as when Seth and Patrick called Joel a baby before knocking him down and when Caleb called Nate a girl before punching him. On the other hand, . . . as we learned from the killers at Columbine, the excluded child can feel justified in using violence to hurt those who exclude him. I wish I could just tell the children to be more inclusive, but it's never that easy.
(Katch, 2001, pp. 129--130)
Wason-Ellam (1996) believes that race, combined with class, is often a reason
for exclusion, although girls tend to exclude on race more than boys do. She
also notes that toys, such as Barbie dolls, can reinforce negative stereotypes
that contribute to bullying. Barbie is still popular with young girls, and Wason-Ellam observes how it became a tool of privilege and race that girls used to
exclude a Punjabi student who did not own the doll. The girls dressed their
Barbies and shared lip gloss, makeup, and hair clips in "gestures of intimacy"
(ibid., p. 97), but when the student, Surinder, would try to join in, she was
dismissed with, "Go away, we don't want you in the group" (ibid., p. 96) and
"I'm going to Renee's house after school to play with make-up because we are
PROFILE OF TRADITIONAL AND CYBERBULLYING
31
best friends. I am not going to invite you, 'cos your clothes are funny and you're
a paki dot" (ibid.). Wason-Ellam recalls Surinder's response when she called her
a "princess": "I inadvertently address Surinder as a 'princess' as she arrives in
school in a fancy dress. Soulfully, she looks up at me and says, 'I can't be a
princess because I don't look like a princess, Linda'" (ibid., p. 97).
Surinder's response illustrates how this type of exclusion negatively affects
students' self-image. These findings also suggest that perpetrators bully to fill an emotional void resulting from a lack of confidence or self-worth. Victimizing
others on the basis of their differences allows the bully to gain status and
recognition (whether positive or negative) within the peer group. The finding
that gender is an important motivator, especially for boys, is not surprising.
What is surprising is that gifted students, or those with a strong work ethic,
appear to invite bullying -- perhaps because young people subconsciously want
to achieve academic success when they realize the career success and social
status it brings. Chapter 4 expands on some of these socializing and attitudinal
influences in greater detail.
Types of Bullying
As I have noted, there are two principal types of bullying: physical and psychological. Both can be carried out in overt or covert ways and may involve
indiscriminate or discriminatory forms of behaviour.
Physical Bullying
Physical bullying is generally described as "overt" because it usually involves
open attacks on a victim (Olweus, 1993) that often grow worse if others are
watching. Studies have found that the longer the perpetrators are encouraged,
the more serious the physical abuse (Salmivalli et al., 1996).
Extreme physical bullying can take many forms, including beating, locking
peers in school lockers, strangling, shooting, or using other weapons or objects
to cause harm. Other methods of harassment include flicking rubber bands at
the victim's face, throwing nails and wood chips in the eyes, spraying victims
with harmful substances, pouring acid or gasoline on the person's body, tying
him or her up, or blindfolding (National Crime Prevention Council, 1997;
Olweus, 1993). These are only a few of the many examples of the kinds of
activities students engage in to enforce a power relationship in which victims
are overwhelmed and helpless.
Physical bullying can also be "covert." This kind of bullying takes place in
the absence of supervisors or adults and might involve actions such as locking
a victim in a school locker -- or rape. A well-known example of covert bullying
resulted in the murder of a South Indian teenager. Reena Virk (see Jiwani, 1997)
was tricked into meeting peers by a grocery store and later beaten to death and
drowned. She was accused of stealing a friend's diary and calling all the boys
who were listed in it. Indiscriminate forms of physical bullying do not identify
the victim on the basis of an enduring prejudice such as race, sex, gender, or
ability but may be triggered on a whim or a spontaneous sense of annoyance
32
CONFRONTING CYBERBULLYING
or discomfort. A victim's look or body language, if misinterpreted as hostile,
can trigger bullying, or a perpetrator may identify a suitable victim as someone
who seems vulnerable (Artz, 1998).
More often than not, physical bullying takes on discriminatory forms, such
as sexual or racial harassment of a physical nature or physical attacks on children with special needs. The pervasiveness of sexual bullying and harassment
in schools is well documented, and updated studies on sexual cyberbullying
in Chapter 4 confirm that it continues to persist. For example, Stein (1991,
1995, 1999) disclosed that approximately 80 percent of girls and 60 percent of
boys report they have been victims of sexual harassment.8 Sexual harassment
incorporates at least four of the characteristics of bullying described here: (1)
there is usually a power imbalance between the perpetrator(s) and victim, (2)
the harassment is unwanted, (3) it is deliberate and relentless, and (4) it is based on the victim's gender.
Sexual harassment is included in the Canadian National Crime Prevention
Council's (1997) description of types of bullying. Although kissing and hugging
are gestures of care, they become bullying when they are unwanted and imposed
on victims against their will. This kind of bullying could include pulling down
someone's pants, flipping up girls' skirts or snapping or unhooking bras, crude
gestures, exposing genitals, or forcing someone to commit a sexual act against
his or her will (all of which can also be defined as sexual assault; Stein, 1995,
1999; Welsh, 1997--1998). This type of sexual harassment is discriminatory
because the victim is selected according to gender (with girls generally victimized more than boys).
Homophobic physical bullying incorporates random forms of physical bullying just described, combined with verbal insults about the individual's sexual
orientation. Tolman, Spencer, Rosen-Reynoso, and Porches (2001) found that
adolescent boys in Grade 9 are most susceptible to homophobic bullying, and
this is based on their appearance. If they are not strong athletes or are physically smaller than others, boys may become targets. However, it is important not to
oversimplify the reasons for this kind of bullying, because research suggests that
victim identification depends as well on the self-assurance, relational attitudes,
and emotional well-being of victims.
Racial attacks include the forms of physical bullying described here, or they
can be combined with sexual harassment or other forms of discrimination. The
difference is that they are either directed by mainstream students toward victims
from visible ethnic groups on the basis of skin color, appearance, manner of
dress, manner of speech, or cultural background (Dei, 1997; Janoviˇcek, 2001;
Jiwani, 2001; Razack, 1998) or by students from visible ethnic groups against
each other. For example, in her study of immigrant and refugee girls, Janoviˇcek
(2001) reports that students of Iranian lineage bullied Iraqi students, Koreans
bullied Philippinos, Hispanic and African American students conflicted, and so
on. This illustrates how complex racial attacks can be and reminds us that it is
not always mainstream students who instigate racial bullying.
PROFILE OF TRADITIONAL AND CYBERBULLYING
33
It has been suggested that race was most certainly a factor in the case of Reena
Virk, whose brutal murder was noted earlier and in more detail in Chapter 1
(Jiwani, 2001). The initial assault was overt: she was attacked on an open
bridge and later under a tree by a group of adolescents. However, after most
of the adolescents left, Kelly Ellard and Warren Glowatski followed her to the
water and continued the "covert" beating and drowning. Ellard, smoking a
cigarette, held Reena's head under the water with her foot until she no longer
surfaced. Significantly, even though word spread that Reena had been killed,
none of the many students who knew about the murder reported it for at least
a week. Another alert for the reader as it relates to cyberbullying: the code of
silence and the sense of entitlement to privacy among perpetrators, bystanders,
and reenforcers. These examples illustrate how covert physical bullying can
be harder to substantiate than overt bullying, particularly if perpetrators and
witnesses have a code of silence. Researchers (Glover et al., 1998; P. K. Smith
& Sharp, 1994) report that observers are afraid to "rat" or "grass" on the
offenders in case they become the next victim.
This network of covert support for perpetrators was also evident in the
Jubran case. Covert bullying was part of the homophobic bullying Jubran
endured for four years at Handsworth Secondary School in North Vancouver,
British Columbia. Friends shielded a classmate who set fire to Azmi Jubran's
shirt, and although each boy owned up to the abuse, each also later denied it.
School administrators had difficulty identifying the individual who carried out
the assault, making it difficult to discipline him.
Children with special needs are also highly susceptible to physical bullying
because they may have difficulty with speech or mobility and as such are already
in a position of vulnerability. P. K. Smith and Sharp (1994) report that physically disabled children, for example, may not be strong or fast enough to protect
themselves or retaliate. They found that approximately two-thirds of the special
needs children interviewed reported being bullied, compared with one-quarter
of mainstream students. One special needs student complained, "They kick me
and punch me and they are horrible to me. They smack me and spit on my
back" (P. K. Smith & Sharp, 1994, p. 222). Another stated that because he had
difficulty carrying his lunch tray, his friend always carried it for him, but then
he was challenged to a fight because other students accused him of being lazy.
Finally, as DiGuilio (2001) observes, students in contemporary schools are
raised in a commercial-and media-driven society that tells them how they
should look and dress to be "cool" or acceptable. Children who cannot afford
the latest fashions or may simply refuse to conform to the popular dress code
may be physically attacked. At the other end of the spectrum, affluent children
who wear desirable clothes are also vulnerable to physical attacks in which
their clothes and watches are stolen from them. This form of bullying is also
known as "taxing." A government survey in Quebec, Canada (Séguin, 2002)
found that 11 percent of 16,600 young people in the province reported being
victimized this way.
34
CONFRONTING CYBERBULLYING
Psychological Bullying
Psychological bullying generally involves either inflicting mental anguish to
cause their targets to fear for their physical safety, or breaking down self-esteem and confidence. This is obviously an integral aspect of cyberbullying. Again, at
least three or more of the characteristics of bullying are always present: (1) the
harassment is unwanted and uninvited, (2) it is relentless, and (3) the victim is
singled out for the abuse. Verbal psychological bullying is "overt" in the sense
that joking and insults can be heard or read by witnesses and substantiated by
victims.
Covert (nonverbal) psychological bullying is intended to exclude and isolate
by stalking or ostracizing the victim. It is the most difficult form of bullying
for victims to substantiate because teachers cannot see it or prove that it has
occurred. Perpetrators might suddenly ignore victims or refuse to work with
them on class projects or other activities. They may spread unsubstantiated
rumors that embarrass the victim or make him or her appear dishonest or
untrustworthy to peers.
Psychological bullying, like physical bullying, can also be indiscriminate or
discriminatory. Indiscriminate psychological bullying might involve teasing,
making repeated derogatory statements about the victim, or other kinds of
verbal harassment. For example, a boy might be called a "loser" because he
does not have a girlfriend or cannot afford clothes that help him fit in with the
"cool" crowd. He may be called "cry baby" if the pressure from the bullying
gets to him and "four eyes" or "geek" or "dork" if he wears glasses (National
Crime Prevention Council, 1997; Olweus, 1991).
Bullying often stems from the social inequities that adult society creates,
fosters, and sustains -- and with which it continues to grapple. Research confirms that a significant amount of psychological bullying is discriminatory
(Dei, 1997; Glover et al., 1998; Janoviˇcek, 2001; Wason-Ellam, 1996). Students are excluded and purposely isolated through covert psychological bullying because of race, gender, sexual orientation, disability, accent, or because
they are good students and do well in class. Children from these categories are
already marginalized because of their differences, which are then exacerbated
through bullying. Peers may not pick them for sports teams or class projects,
and they may be ignored, stalked, or stared at. Scholars observe that not only
are such children marginalized by one form of discrimination, they often face
a combination of discriminatory factors (for example, they might experience
covert bullying through exclusion because of their race as well as their gender
or sexual orientation, and possibly a learning disability or giftedness) (Jiwani,
2001). This results in intersecting and interlocking barriers of discrimination
that victims find difficult to overcome, understand, or explain. They know they
are isolated but may not understand why.
Covert psychological bullying makes it difficult for teachers to support the
victim. For example, teachers cannot punish someone simply for staring and
may not be able to establish for certain that it was done with malicious intent.
PROFILE OF TRADITIONAL AND CYBERBULLYING
35
Alleged stalkers, for example, could defend their actions by saying they simply
happened to be walking the same way as the victim. Similarly, children cannot
be disciplined for laughing unless the teacher overhears inappropriate language
or unfair innuendoes. And students will undoubtedly be embarrassed to have a
teacher insist that they be accepted into a group or sports team when they are
clearly unwanted.
Psychological sexual harassment can also be overt or covert, comprising sexual proposals and threats, name-calling, or repeated demands for sexual acts,
among other demands. Girls may be called "bitch," "hoe" (whore), "dyke,"
"butch," or "lesbian," whereas boys will be called "gay," "homo," "sissy," or
"girl." As with physical bullying, children from visible ethnic groups are especially vulnerable to psychological bullying. Studies on refugee and immigrant
students from these groups disclose that these students are subjected to significantly more bullying than mainstream students. Racial slurs include comments
such as "go home to India (or China, or Iran)" and taunts about appearance
and manner of dress. Refugee and immigrant students are often referred to as
"FOBs" ("fresh off the boat") and are sometimes also harassed by peers from
their own communities who were born here and see them as an embarrassment
(Handa, 1997).
Finally, children with special needs are particularly vulnerable to verbal bullying because of their disabilities. D. J. Smith (1995) explores how devastating
this bullying is for these children; children reported being called "cabbage,"
"maggot," and "whale" (pp. 223--224) and having their peers jeer at their
low marks in class. At the other end of the spectrum, gifted children are also
subjected to harassment as "teacher's pet," "dork," "geek," or "walking ency---
clopaedia."
Boulton and Hawker (1997) explain that because teasing is characterized by
a combination of irritating and lighthearted qualities and often contains hidden
messages, it can be difficult for teachers and students to recognize it as bullying.
Indeed, what one child finds upsetting, another may find playful, and what one
child finds funny on one occasion may not be appreciated when it becomes
persistent. It can therefore be difficult for the victim as well as adult observers to determine the teaser's intention and for the perpetrators to appreciate fully
the effect of their words and actions.
Changing Roles
Adding to the difficulty in identifying and addressing bullying is the fact that
the roles of perpetrator and victim can be interchangeable. The National Crime
Prevention Council (1997) reports that children who find themselves victimized
can also perpetrate violence and are often perceived as "bullies." Studies conducted in Scandinavia by Salmivalli (1999, 2001; Salmivalli et al., 1996) identified six distinct participant roles that children take in bully--victim situations: bully, victim, assistant (joins the bully), reenforcer (encourages the bully by
observing and laughing), defender (assists the victim by siding with him or
36
CONFRONTING CYBERBULLYING
her or trying to stop others), and outsiders (students unaware of the bullying or
who avoid such situations by staying away). The researchers studied 573 sixth---
grade students and found they represented six participant roles in the following
proportions:
Bullies
8.2%
Victims
11.7%
Assistants
19.5%
Reenforcers
17.3%
Defend victims
23.7%
Outsiders
12.7%
Although they found that 23.7 percent of students said they would defend the
victim, a larger percentage (an aggregate of 36 percent of the children in this
sample) exhibited some level of support for the behaviour.
Pepler and Craig (1997) found that although 83 percent of students report
discomfort in watching someone being bullied, their actual observations
showed that 25 percent of bystanders supported the perpetrators. Henderson,
Hymel, Bonanno, and Davidson (2002) note that peer bystanders who watch
but do nothing contribute significantly to the problem. Equally disturbing is
the fact that bystanders are often friendlier toward the instigators after such
episodes, which increases their excitement and aggression.
O'Connell, Pepler, and Craig (1999)9 identified three major reasons for peer
inaction:
1. the personal responsibility is diffused because of the presence of others,
2. children are intimidated by the power differential between themselves and
the perpetrator and are afraid of becoming victims themselves, and
3. children may not have strategies for dealing with bullying and opt not to
intervene.
Notably, another group of studies confirms that peer witnesses lack the courage
to report bullying because they are not confident of receiving assistance and
protection from teachers or administrators (Besag, 1989; O'Moore & Hillery,
1991; Tattum & Herbert, 1993). In sum, peer inaction contributes to a negative school environment in which victims cannot rely on their peers for support,
and as the next chapter shows, in cyberspace, peer support for perpetrators can
multiply to millions of onlookers and bystanders. Their inaction adds significantly to the victim's humiliation and creates a negative online and in-school
environment for them.
Henderson, Hymel, Bonanno, and Davidson (2002) also report that the
greater number of children present, the longer the behavior continues, and,
concomitantly, the abuse intensifies. Again, this should be noted because it is
especially true of cyberbullying when large numbers of kids can get involved
at any time of the day or night. These studies support Boulton and Hawker's
(1997) findings that a greater proportion of students, like their teachers, did
PROFILE OF TRADITIONAL AND CYBERBULLYING
37
not perceive verbal harassment as bullying. It is possible that the bystanders
do not see themselves as actual participants, even though they watch and may
verbally contribute to the harassment.
Effects of Bullying
As Hamed Nastoh's story in Chapter 1 illustrates, the tragic consequences of
extreme bullying, as witnessed in cases involving suicide and murder,10 are well
known. The impact of bullying on children in the normal course of school life
is not as well recognized but can also be devastating. Mental anguish from
the social exclusion caused by physical and psychological bullying is sufficient
to destroy the confidence of any adult, let alone a child on whom it can have
lifelong effects. As the evidence illustrates, the impact of bullying (on victims
and perpetrators) should not be taken lightly.
Researchers (Haynie et al., 2001; Hodges & Perry, 1996; Juvonen &
Graham, 2001; Kochenderfer-Ladd & Wardrop, 2001; Rigby, 2001) find
that victims and bullies experience greater psychosomatic problems, including
depression, anxiety, low self-esteem, and poorer overall mental and physical
health than those not involved in bullying. Interestingly, children who are both
victims and bullies are at even greater psychological risk than those who are one
or the other (Haynie et al., 2001; Kumpulainen, Rasanen, & Henttonen, 1999;
Nansel, Overpeck, Pilla, Simons-Morton, & Scheidt, 2001). They demonstrate
greater psychological problems, tend to seek out deviant peers, and perform
more poorly in their schoolwork. They also report poorer self-concept and
greater social dissatisfaction. Boulton and Hawker (1997) point to a growing
body of research that shows that teasing and exclusion in particular can have
devastating consequences, including school avoidance and poor school functioning. These findings are corroborated by victims' own descriptions in their
legal claims against schools and by parents of students who committed suicide
( Dufour v. Howe Sound Board of Education, 2001-case abandoned; Jubran v.
North Vancouver Distr. No. 44, 2002).11
Bullying and bystander support for perpetrators have serious consequences
for students from marginalized groups, such as immigrants or refugees. These
students are less likely to complain to authorities because they are new to the
school system, do not speak English well, and may be too shy to build a rapport
with their teachers. They may not understand the role of school counselors,
or their own cultural protocols may require them to maintain deference to
authority (Handa, 1997). Similarly, disabled students, gays and lesbians, and
heterosexual children of same-sex parents may exhibit poor school performance
and related depression (Sears, 1993).
It is important to point out that the effects of bullying can be profound --
and lifelong. Devlin's (1997) study of British prison inmates is instructive here.
Devlin found that most of the inmates had experienced severe bullying during
their lives, and although much of the bullying was probably physical, the psychological impact clearly affected them long after the physical scars had healed.
38
CONFRONTING CYBERBULLYING
Many became hardened criminals because of pent up anger and frustration and
lack of trust in peers, as well as in teachers and other adults in their lives.
The consequences of most physical bullying are easily recognizable. Teachers can easily see when a student has bruises, a black eye, or broken bones.
Internal injuries such as bleeding or broken ribs, however, are more difficult
to detect and may be dismissed as whining until external signs make it clear
that the student is in pain. For example, Hamed Nastoh was sent home with
a stomachache two days before he killed himself, and his mother noted that
he did not tell either her or school officials that he had been kicked in the
stomach. The stress and anxiety of bullying can also cause physical conditions such as headaches, stomach upset, and lethargy, but teachers and parents
might reasonably assume that the child has a physical illness. Not surprisingly, perpetrators also sustain serious physical injuries and tend to become
involved in substance abuse and criminality (National Crime Prevention Council, 1997; Olweus, 1991). Those who fluctuate between bullying and being
victimized show the greatest tendency for serious aggression and criminality
in adulthood (physical fighting, weapon use, and theft; DiGiulio, 2001; Hall,
1999).
It is clear that bullying is a serious problem in schools that needs to be
addressed by schools and parents. The day-to-day victimization of students
is as important to ameliorate as the extreme cases. It is not only the safety,
health, and well-being of victims that is affected, but also that of all students
at a school where bullying occurs -- and that is virtually all schools -- because
it creates a chill and poisons the entire school environment. I come back to
the issue of school environment in later chapters because this is one of the
primary areas where schools and parents can work together. It is also and an
aspect of school responsibility that the courts have highlighted as paramount to
learning.
BULLYING TODAY
In the wake of the Columbine, Montreal (Dawson College), and the mass random shootings at Virginia Polytechnic University (Agence France Presse, 2007)
and the media attention to those and other serious bullying cases, many parents and stakeholders are concerned that school violence is on the rise12 and
possibly even out of control. Easy access to guns and the high population in the
United States might contribute to the current rates of violence there. Students in
Canada, Australia, China, Japan, or Britain, for example, may not experience
cases of extreme violence as often because there is less ready access to guns.
This does not mean, however, that bullying is not prevalent in schools in those
countries or that it is not a serious concern. It is an issue in many countries,
but it usually does not involve extreme violence or result in death. Yet given
the media attention to bullying, it is important to consider it in context.
PROFILE OF TRADITIONAL AND CYBERBULLYING
39
Canadian and U.S. researchers (Dolmage, 2000; Roher, 1997; Tanner, 1996)
concur that a small number of young people (4 to 6 percent) actually engage in
serious acts of violence.13 DiGuilio, in fact, contends that schools are the "safest places in the world" (2001, p. 23). He notes that violent deaths from murder and
suicide in U.S. schools declined by 40 percent between 1995 and 2001, whereas
the risk of violent death for students who dropped out of school, were expelled,
or were suspended increased "several hundredfold" (ibid.).14 These statistics,
although less recent than those I provide on cyberbullying in the next chapter,
are crucial. Let me repeat the fact that the risk of violent death for students
who were expelled or suspended increased "several hundredfold" (ibid.). When
we consider school and government responses to bullying and cyberbullying
in later chapters, these statistics will play an important role. DiGuilio also
provides data that disclose a 14 percent reduction in physical fights in U.S.
schools between 1991 and 1997 -- another positive finding; however, as we will
see in Chapter 2, it maybe simply that the physical bullying has moved into the
covert realm of cyberspace with far wider reach.
In the meantime, it is notable that typically only extreme bullying cases
are reported by the media, thus giving an inaccurate picture of its frequency
and seriousness. According to Dolmage (2000), media-reported statistics that
reflect a rise in youth violence are rarely presented in context. The numbers may
instead reflect higher rates of overall violence because of a growing population15
or because schools now report incidents of a less serious nature to police more
frequently.16 Put another way, it is important to question critically the statistics presented by the media, which are often geared to sensationalize and draw
attention to aspects of a story without attention to the context. This in turn has
significant impact on the policy and practice response by schools and education
ministries.
I spend considerable time addressing the influence of the media in creating
fear and shaping the public's perceptions about bullying, cyberbullying, and the
dangers of communication technologies in later chapters. For now, it is notable
that a lot of bullying is psychological -- both in terms of how it is carried out
and its effects. In contemporary society, much of it flows between physical and
cyberspace as "cyberbullying" and it is to this form of bullying that I now turn.
DEFINITIONS OF CYBERBULLYING
One of the problems I have always had with definitions of "bullying" is that
they are too simplistic and therefore invited reactions, policy, and programmatic responses that failed to recognize its nuances and complexities. In the
case of cyberspace, because of the range of possibilities, the fluidity with which
it is possible to move from one form of technology such as e-mail, MSN, Facebook, MySpace, blogs, chat rooms, and so on to another, and the capacity for
millions of people to read and participate in various forms of communication,
40
CONFRONTING CYBERBULLYING
any definition of cyberbullying must be applied with a caveat. Cyberbullying
must be understood in the specific paradigmatic context in which it is presented.
More important, when we define a behavior, it is important to remember it as
an action that takes place in a particular context, at a particular time, with various influences operating on the individual(s) who take the action. Moreover, it
is the particular lens or conceptual approach that we bring to our understanding
of bullying or cyberbullying that will determine our response. I began to hint in
my introduction to Chapter 1 that descriptions and definitions of reality can be
deliberately framed to develop people's understanding of an issue by the words
that are used to define it. So, for example, consider describing the Internet as a
"Gift from the Devil" (Soloyon, 2005) or saying that the "Web ensnares teens
up to eight hours a day" (Schmidt, 2006). If use of communications technology
by young people is consistently described in this way, it follows that no matter
how they use it, there will be a negative connotation attached to it. For example, I gave the example of the teenage boys who testified at the Azmi Jubran
human rights tribunal and explained that when they call someone "gay" or a
"homo" and if the expression is directed toward someone they like, then they
mean it as a term of endearment. When it is against someone they dislike, then
it is meant to hurt.
With so much of popular teenage discourse infiltrated with words such as
"hoe" (whore) and "bitch" and quick communication codes such as "omg"
("Oh my God") that have developed using instant messaging and text messaging, teenagers are increasingly blocking out the adults in their lives. Moreover,
as Lankshear and Knobel (2006) point out, kids approach cyberspace with a
very different understanding of its fluidity or capacity, whereas adults tend to
see cyberspace as something that can be controlled in the same way as physical
space.
For example, adults might perceive that online firewalls are like brick walls
that cannot be hacked through. Because adults have always had some kind
of "control" over the spaces that kids occupy and over forms of knowledge
young people access at home and school, they might define cyberbullying as
"antiauthority," "rampant," and "out of control." Although in the last five
years, numerous studies have reported on the forms, extent, and impact of
cyberbullying, it is important to bear in mind that that these findings may help
us understand only one part of the puzzle and that we ought to look at the range
of influences that might tacitly condone cyberbullying through the behavior
and responses we ourselves model.
We should also be cognizant of the very fine line between youth expression
that we generally accept when they interact among themselves and those that
are truly harmful and offensive. Here are some definitions of cyberbullying
that illustrate the forms it takes, the tools that are used to engage in it, and
ways in which it is understood to differ from traditional bullying.
It is not clear whether the term "cyberbullying" was first coined by Canadian
Bill Belsey (2005) or American lawyer Nancy Willard (2003). Belsey defined
cyberbullying as follows:
PROFILE OF TRADITIONAL AND CYBERBULLYING
41
Cyber bullying involves the use of information and communication technologies such as email, cell phone and pager text messages, instant messaging, defamatory personal Web sites, and defamatory online personal polling Web sites, to support deliberate, repeated, and hostile behavior by an individual or group that is intended to harm others.
(Belsey, 2005, n. p.)
A more comprehensive, although shorter definition, is presented by Nancy
Willard, director for the Center for Safe and Responsible Internet Use, who
describes cyberbullying as speech that is "defamatory, constitutes bullying,
harassment, or discrimination, discloses personal information, or contains
offensive, vulgar or derogatory comments" (Willard, 2003, p. 66). Remember that if we adopt this definition, the defamatory nature of the expression
would have to be first established in a court of law. According to Willard, other
forms of cyberbullying can include flaming [sending derogatory messages to a
person(s)], harassing and denigrating (put-downs), masquerading, outing, and
excluding (Willard, 2005).
The term "cyberbullying" describes forms of bullying that use technology.
According to some reports, it is a phenomenon that children and adolescents
seem increasingly to be using to harm others (Campbell, 2005), although there is
also significant evidence (Media Awareness Network, 2005) that many adults
are equally guilty of engaging in cyberbullying. I provide examples of adult
cyberbullying as the discussion progresses.
There is no dearth of definitions of cyberbullying. Elsewhere, and within the
context of certain articles, I have defined peer-to-peer cyberbullying (Shariff & Strong-Wilson, 2005) as comprising covert, psychological bullying, conveyed
through the electronic mediums such as cell phones, blogs and Web sites, online
chat rooms, MUD rooms (multiuser domains where individuals take on different characters), and Xangas (online personal profiles where some adolescents
create lists of people they do not like).
In 2007, I would add to that definition to include social communications
networks such as Facebook, YouTube, Orkut, LinkdIn, MySpace, and countless others that are surfacing on the Internet. Other researchers have defined
cyberbullying as "willful and repeated harm inflicted through the medium of
electronic text" (Patchin & Hinduja, 2006). Other researchers define it as an
"an aggressive, intentional act carried out by a group or individual, using electronic forms of contact, repeatedly and over time against a victim who can not
easily defend him or herself" (W. J. Smith, 2004).
It might be a good idea to check the description of cyberbullying on
Wikipedia. The definitions and explanation of cyberbullying are comprehensive and helpful because they cover a range, although not all, of cyber actions
that could be included as cyberbullying:
Cyberbullying (also spelled Cyberbullying, Cyber bullying, or online bullying) is the term used to refer to bullying and harassment by use of electronic devises through means of e-mail, instant messaging, text messages, blogs, mobile phones, pagers, and 42
CONFRONTING CYBERBULLYING
websites. Other terms for cyberbullying are "electronic bullying", "e-bullying," "SMS
bullying," mobile bullying," "online bullying," digital bullying," or "Internet bullying."
("Wikipedia description of cyberbullying," 2007)
Wikipedia goes on to explain that in some countries, provinces, and states,
cyberbullying is defined as a crime. As with the profile of traditional bullying
presented earlier, cyberbullying is described as follows:
[W]illful and involves recurring or repeated harm inflicted through the medium of electronic text. According to R.B. Standler, bullying intends to cause emotional distress and has no legitimate purpose to the choice of communications. Cyberbullying can be as simple as continuing to send e-mail to someone who has said they want no further contact with the sender. Cyberbullying may also include threats, sexual remarks, pejorative labels (i.e. hate speech). Cyberbullies may publish personal contact information for their victims at websites. They may attempt to assume the identity of a victim for the purpose of publishing material in their name that defames or ridicules them.
("Wikipedia description of cyberbullying," 2007)
These definitions all state in common the fact that communications technology tools and media are being used to engage in online bullying and that the
communication is, as with general bullying, deliberate and willful, repeated and
exclusionary. So the question that arises is this: Do we blame the medium or
the message (McLuhan, 1964)? I would argue that the medium of cyberspace
simply provides an avenue for expression of the message. As Campbell asks,
"is cyberbullying, an old problem in a new guise?" (2005, p. 68). The message is no different from that which is often expressed when bullying occurs in
physical space (overtly or covertly). If we are to effectively carry out the goal
of one fourteen-year-old suicide victim, Hamed Nastoh, who left a note asking
his mother to educate schools and students about why bullying can be so devastating after his death, then it is critical to focus on the message, but it is also important to understand the medium so that it, too, can be used to empower
learning and convey an altogether different message.
Methods used in cyberbullying include text messaging of derogatory insults
on mobile phones, with students showing the message to others before sending
it to the target, sending threatening e-mails, and forwarding a confidential email to all address book contacts, thus publicly humiliating the first sender.
Others gang up on one student and bombard him or her with "flame" e-mails
or set up a derogatory Web site dedicated to a targeted student and emailing
others the address, inviting their comments.
In Canada, high school student David Knight lived this nightmare. David had
been teased, taunted, kicked, threatened, and punched for most of his years in
high school. In an interview with CBC National News (Leishman, 2002), David
explained that the most devastating aspect of the bullying was the humiliation
he suffered every time he logged onto the Internet. Students from his school
had set up a Web site about him where they continued the threats, insults, and
PROFILE OF TRADITIONAL AND CYBERBULLYING
43
gossip. The derision against David spread quickly and globally. He was told by
peers to check out a certain Web site originating in Thailand. To his horror, the
Web site was titled, "Welcome to the page that makes fun of Dave Knight" --
an extension of the Web site that was set up by his Canadian peers. David
described the experience:
Rather than just some people, say 30 in a cafeteria, hearing them all yell insults at you, it's up there for 6 billion people to see. Anyone with a computer can see it . . . and you can't get away from it. It doesn't go away when you come home from school. It made me feel even more trapped.
(Leishman, 2002)
It took the threat of litigation against the Internet provider and David's
school before the Web site was finally taken down -- approximately six months
after his family's initial request for removal (Leishman, 2002).
In addition, Web sites can be set up for others to vote on the biggest geek
or sluttiest girl in the school (Campbell, 2005; Snider, 2004). In one instance, a
video of a teenager masturbating for her boyfriend was uploaded and emailed
to her entire class when the relationship soured (Harmon, 2004).
The previous section presented a profile of traditional bullying as either
physical or psychological, and overt or covert. Although I have described it as
primarily "covert," cyberbullying can be as open, aggressive, and "overt" as
other forms of psychological bullying -- especially now that comments derogat---
ing teachers and persons in authority can be loaded on the Internet for everyone
to see. Cyberbullying generally takes the form of verbal and written bullying.
Written forms of communication, especially online, can often be saved and
reproduced, and have an element of permanence, whereas the spoken word, if
not recorded, is difficult to reproduce.
As I have mentioned several times and continue to emphasize and expand
on throughout this book, cyberbullying is not restricted to children and youth.
The Internet and e-mail, for example, have provided a medium for many adults
to vent their anger and frustration, harass, threaten, and exploit the reputations
of other adults. Some take on virtual personalities in MUD rooms and sexually harass other players. In Chapter 7, I also highlight cases involving online
harassment and cyber libel against teachers by parents and introduce examples
of Internet Web sites created by adults that perpetuate hate and violence.
Before presenting statistics drawing from a range of international studies
to gauge the extent of technology use and cyberbullying in various parts of
the world, it is important to highlight some of the key characteristics of cyberbullying that are not aspects of traditional bullying.
Characteristics of CyberBullying
Electronic media by their nature allow for traditional forms of bullying to take
on characteristics that are specific to cyberspace. Following is an overview of
the various concerns related to cyberbullying.
44
CONFRONTING CYBERBULLYING
Anonymity
The anonymous nature of cyberspace first made it attractive to young people, especially when there is a nexus to the school, because it allows for the
targeting of classmates or teachers without being easily detected (unless they
are using social networking sites on which is it easier to identify those who
post comments). Most cyberbullying is anonymous because perpetrators are
shielded by screen names that protect their identity. Anonymity in cyberspace
adds to the challenges for schools (Harmon, 2004). Furthermore, although
cyberbullying begins anonymously in the virtual environment, it affects learning in the physical school environment. The consequences can be psychologically devastating for victims and socially detrimental for all students (G áti,
Tényi, T úry, & Wildmann, 2002). Fear of unknown cyber perpetrators among
classmates and bullying that continues at school distracts all students (victims,
bystanders, and perpetrators) from schoolwork. It creates a hostile physical
school environment in which students feel unwelcome and unsafe. In such an
atmosphere, equal opportunities to learn are greatly reduced (Devlin, 1997;
Shariff & Strong-Wilson, 2005).
An Infinite Audience
A second concern, as I mentioned earlier in this chapter, is that research on
general bullying finds that 30 percent of onlookers and bystanders support
perpetrators instead of victims (Boulton, 1993; Salmivalli, 2001). The longer it
persists, the more bystanders join in the abuse (Henderson, Hymel, Bonanno, &
Davidson, 2002), creating a power imbalance between victim and perpetrators.
Isolation renders victims vulnerable to continued abuse, and the cycle repeats
itself. What might begin in the physical school environment as friendly banter
can quickly turn into verbal bullying that continues in cyberspace as covert
psychological bullying. The difference in cyberspace is that hundreds of perpetrators can get involved in the abuse, and classmates who may not engage in
the bullying at school can hide behind technology to inflict the most serious
abuse.
I have already used the well-known example of an abusive Web site designed
to insult David Knight, which found its way into Thailand. A similar situation
occurred with a Trois Rivières, Québec teenager, Ghyslain Reza, who became
known worldwide as the "Star Wars Kid." Ghyslain had taped himself playing
a Star Wars character and doing a dance with the "force be with you" sabre.
He mistakenly left the tape in the media room at his school. The tape was
stolen by two classmates, who uploaded the video onto a Web site. The Web
site received approximately 15 million hits and more than 106 clones of the
video were made. This resulted in Ghyslain becoming known as the "Star Wars
Kid." He was teased everywhere he went at school. The Hollywood director
of the Star Wars movies, George Lucas, heard about Ghyslain. The American
corporate mentality kicked in, and some entrepreneurs began to produce "Star
Wars Kid" memorabilia and souvenirs. At his school, students would jump
PROFILE OF TRADITIONAL AND CYBERBULLYING
45
up on tables and dance chanting "Star Wars Kid!" everywhere he went. His
parents eventually sued the two classmates who uploaded the tape and settled
out of court for approximately $360,000 Canadian in April 2006. Ghyslain
had to move to another school to avoid the teasing. Although the settlement
was good for Ghyslain because it took him out of the public eye, if the case had
proceeded to trial, it would have been the first of its kind on cyberbullying.
Most of the court cases that are instigated for bullying and cyberbullying
seem to get settled out of court because legal costs are generally too high for
parents, and school insurance companies use all kinds of delay tactics to avoid
trial. Moreover, courts are reluctant to hear cases of cyberbullying because of
the definitional challenges and their concern of opening up the floodgates to
litigation. David Knight's situation is a case in point. His claim was delayed
for at least three years by the schools' insurers and is now under settlement
negotiations.
Prevalent Sexual and Homophobic Harassment
A third concern is that sexual and homophobic harassment is emerging as a
prevalent aspect of cyberbullying, and this may be related to the gender differences in the way that males and females use the Internet and cell phone
technologies. Certainly, the international findings that I discuss later are interesting in this regard.
Permanence of Expression
Fourth, online communications have a permanence and inseparability that is
difficult to erase. Cellular phones are generally carried all the time, making
it difficult for victims to ignore, and computers are generally used every day.
Although a cell phone can be ignored, text messages and e-mails can be sent
so that every time the phone or computer is turned on, the nasty messages are
waiting. Many people have cell phones and need their computer for learning
and work activities. Moreover, e-mails and defamatory material or modified
photographs about a person on the Internet are extremely difficult to remove
once posted because millions of people can download and save it immediately.
These forms of expression can then be forwarded to hundreds of other people
and saved on computers.
Online Social Communication Tools
Online social communications tools for preteens and teenagers such as MySpace began to surface near the beginning of the 2000s and caught on like
wildfire. Especially for girls, who engage in more social and verbal forms of
communication, MySpace was the perfect way to connect with friends but also
exclude, harass, and demean peers. Disney has recently created a MySpace of its
own to capitalize on its popularity. Until this year, incidents of cyberbullying
involving MySpace were generally restricted to peer-to-peer cases. However,
46
CONFRONTING CYBERBULLYING
with the advent of Facebook and YouTube, the world of social networking
entered entirely new realms.
Facebook was launched on February 4, 2004, at Harvard University, by
twenty-two-year-old Mark Zuckerberg. It was developed to be a social networking tool for Ivy League university students; within two weeks, half of
Harvard students were members. By May 30, 2004, students at Stanford and
Yale had joined, and by September 2005, Facebook was opened to high school
students. By June 2006, the site was opened to business networks with more
than 20,000 networks of employees. Within a span of three years, Facebook
gained more than 19 million registered users. It is the sixth most trafficked site
in the United States and 1 percent of all Internet time is spent on Facebook.
com (Roher, 2007). One of its attractions is that it is a photo-sharing site on the Web. Six million photographs are uploaded daily and expected to bring Zuck-erman $100 million in revenue in 2007. Yahoo offered to purchase Facebook for $1 billion and was turned down.
According to a California ethnographer, danah boyd (her legal name is
in lowercase), the competition between Facebook and MySpace is based on
class. In an article titled "Facebook is for 'good' kids -- MySpace is for freaks"
(Harris, 2007), The Gazette reports boyd's research that Facebook teens tend to be from families who are wealthier and emphasize a college education, are predominantly white, take honors classes, and "live in a world dictated by after
school activities," whereas the young people who communicate on MySpace
are described as "geeks, freaks, or queers" from lower-income families and are
expected to get jobs after graduating from Grade 12. The reasons for this divide
according to boyd is that people tend to gravitate to social groups where they
feel most comfortable. This was verified in a survey by Comscore (an Internet
data collection company) that found almost 50 percent of Facebook users --
compared with the overall Web average of 40 percent -- live in households in
which the annual income is higher than $75,000 U.S. The media article notes
that although boyd's findings were presented as a "blog essay" rather than an
academic article, her reputation as a leading analyst of online behavior makes
her study convincing.
I agree with other academics who found boyd's study interesting because it
identifies the online subtleties of discrimination that are difficult to recognize.
In light of this study, it is not surprising that the U.S. military prevented their soldiers from accessing MySpace but allowed access to Facebook, which is
preferred by officers.
In a recent interview, boyd described MySpace and Facebook as follows:
MySpace and Facebook are social network sites where individuals create profiles and link to others ("friends") within the system. The profile serves as an individual's digital representation (similar to homepages) of their tastes, fashion, and identity. In crafting this profile, individuals upload photos, indicate interests, list favorite musicians and describe themselves textually and through associated media. The social network feature allows participants to link themselves to others within the system, revealing their affiliations PROFILE OF TRADITIONAL AND CYBERBULLYING
47
and peer group. These sites also allow friends to comment on each other's profiles.
Structurally, social network sites are a cross between a year book and a community
website.
These sites also provide numerous communication tools. Both have a messaging system similar to email; MySpace also has a bulletin board where people can post messages that all friends can read and a blogging service where people can post entries for either friends or the public at large. When youth login, their first task is typically to check messages in order to see who has written to them. While email is still used to communicate with adults and authorities, MySpace is the primary asynchronous communication tool for teens. After checking personal messages, youth check friend additions, bulletins board posts, event announcements and new blog posts by friends. They visit their friends'
pages to see new photos or check out each other's comments. The vast majority of
social network site use amongst youth does not involve surfing to strangers' profiles, but engaging more locally with known friends and acquaintances.
(boyd & Jenkins, 2006)
According to boyd, MySpace has more than 78 million registered accounts,
whereas Facebook has approximately 8 million. Although more than 85 percent of college students participate on Facebook if it exists on their campus,
she explains that MySpace is a cultural requirement for American high school
students. She quotes one teenager as saying, "If you're not on MySpace, you
don't exist" (boyd & Jenkins, 2006). Not all MySpace users are teenagers, but
most American teenagers have MySpace accounts.
boyd explains that these sites play a key role in contemporary youth culture:
These sites play a key role in youth culture because they give youth a space to hang out amongst friends and peers, share cultural artifacts (like links to funny websites, comments about TV shows) and work out an image of how they see themselves. They also serve as digital publics, substituting for the types of publics that most adults took for granted growing up, but are now inaccessible for many people -- neighborhood basketball courts, malls, parks, etc. and allow them spaces where they can escape adult culture.
(boyd & Jenkins, 2006; emphasis added)
I ask readers to make note of boyd's remarks because they are important to
my discussion of how we supervise student spaces in Chapter 5.
Because of its more elitist status and the fact that its enrollment is popular
with so-called brighter and more educated youngsters, prospective employers
have begun to check applicant's profiles on Facebook to see what kinds of
friends they have, how much they drink (as evidenced by photographs of themselves either posted or tagged by friends), what kinds of personal conversations
they have with friends on their walls, how they generally dress and behave, and
so on (Sankey, 2007).
As more teens join Facebook, this social networking Web site has run into
problems relating to high school and middle school students posting antiauthority cyber expression about teachers and school officials. What is surprising
48
CONFRONTING CYBERBULLYING
is that many of the kids who post the online comments argue that their conversations should not be accessed by adults (even if those adults are on Facebook and can see their postings through other people's profiles). This fuels the
debate about private and public spaces, and students' arguments that they are
not "willfully bullying" their teachers but simply having conversations among
themselves that are not meant for their teachers' or school officials' eyes. They
argue that they do not intend to harass, threaten, and generally bully their
teachers and that they have every right to a free conversation. I return to an
analysis of these issues later on in the book. In the meantime, other networks,
such as YouTube, are also drawing their share of problems.
YouTube allows for the downloading of videos for all to see. Internationally,
YouTube has caught on as a site where all kinds of videotapes can be taken of
teachers and other victims. In some cases, videotapes are modified and placed on
YouTube. Examples include videotaping student fights, filming peers undressing
in gym locker rooms and washrooms, filming angry teachers in classrooms, and
students dancing at a school dance (Roher, 1997).
Other social networking tools include Orkut, the equivalent of MySpace
in India, and Freevote.com. Using Freevote.com, students can set up a Web
page for an individual school that permits students to vote on issues at their
school. Although the philosophy is positive, this site also allows students to
make personal, degrading, and offensive anonymous comments about others.
Similarly, RateMyTeacher.com and RateMyProfessor.com sometimes invite vit---
riolic comments when students are angry with teachers or professors for a variety of reasons. Bedo.com is popular in New Zealand, Australia, Britain, and
Ireland, and contains categories such as "people search," "background check,"
"find friends," "find people," "chat room," "black dating," "photo album,"
and "on-line photo albums." Although it is important that the Web site has
background checks, Bedo has also had its share of young people engaging in
cyberbullying.
These online social networking tools are both public and private to a limited extent, opening up important debates about which stakeholders have the
authority (and responsibility) to intervene in cyberspace to monitor young people's social communications. The jury is still out on this issue as the courts
have yet to provide clear direction on these issues. The social communications
networks present an exception to the anonymity of cyberbullying because the
names of those who post comments can be made visible and accessed by others who join the same network. Because of the overwhelming global reaction
to these social communication networks, I deal with them in upcoming chapters through detailed analysis, because it is through these issues that we can
sift through and tease out some of the boundaries of responsibility which at
present remain unclear.
Prevalence of Sexual and Homophobic Harassment
In 2005, I wrote several articles and book chapters with a graduate student,
Rachel Gouin, on the prevalence of sexual and homophobic harassment in
PROFILE OF TRADITIONAL AND CYBERBULLYING
49
cyberspace. I reiterate here some of the findings we reported. This form of cyberbullying is largely influenced by both biological (hormonal and prepubescent
influences) and environmental (gender socialization) factors.
The research suggests that although both genders engage in cyberbullying,
there are differences between how they do so (Chu, 2005; Li, 2005). It has been
argued that children who engage in any form of bullying are victims. They are
influenced by biological and environmental forces, including intersecting and
interlocking systemic barriers of oppression based on race, gender, sexual orientation, (dis)abilities, cultural hegemony, androcentrism, and Eurocentrism that
continues to pervade many institutions including schools and courts (Razack,
1998; Shariff, 2003). I expand on these influences in Chapter 5.
Numerous scholars have written about online gender harassment (Brail,
1996; Finn, 2004; G áti et al., 2002; Herring, 2002; McCormick & Leonard,
1996). Some have outlined categories such as gender harassment, unwanted sexual attention, and sexual coercion (Barak, 2005). Others have written about
virtual rape (Dibbell, 1993; MacKinnon, 2001), cyberstalking (Adam, 2001,
2002; Spitzberg & Hoobler, 2002; Tavani & Grodzinsky, 2002), identity theft (Finn & Banach, 2000), cyber bullying (Shariff, 2004; Ybarra & Mitchell,
2004a, 2004b), and cyber violence more generally (Herring, 2002). The studies
highlighted in the sections that follow illuminate ways in which gender-based
cyberbullying or violence differs from and is linked to what occurs in physical
(nonvirtual) space.
Female Victims
Barak (2005) defines three categories of sexual harassment:
1. gender harassment,
2. unwanted sexual attention, and
3. sexual coercion.
She divides the first category into four subcategories:
1. active verbal sexual harassment, which includes offensive sexual messages
from harasser to victim, gender-humiliating comments, and sexual remarks;
2. passive verbal sexual harassment, which includes offensive nicknames and
online identities (such as wetpussy, xlargetool);
3. active graphic gender harassment, which includes unwanted erotic and
pornographic content through mail or posting them in online environments;
and
4. passive graphic gender harassment, including pictures and movies published
on pornographic sites (such as forced pop-up windows).
The second category, unwanted sexual attention, "refers to uninvited behaviors that explicitly communicate sexual desires or intensions toward another
50
CONFRONTING CYBERBULLYING
individual" (Barak, 2005, p. 78). Finally, sexual coercion entails the use of various online means to pressure the victim into sexual cooperation. Even though
the use of force is not possible online, the threats can be perceived by the victim as being as realistic as a face to face situation. This is illustrated by the telephone threat that caused Canadian teenager Dawn Marie Wesley to commit suicide.
The words "You're f . . . . . g dead!" by a classmate caused her to believe real
harm would come to her. Her perpetrator was convicted of criminal harassment
because the court observed that perceived harm by the victim amounts to the
same thing as actual harm (Shariff, 2004).
This perspective that electronic threats are as real or even more frightening
than those made face-to-face is supported by Herring (2002), who explains
that online behavior that leads to assault against the physical, psychological,
or emotional well-being of an individual or group in effect constitutes a form
of violence. She distinguishes four types of cyber violence:
1. online contact leading to offline abuse (misrepresentation leading to fraud,
theft, unwanted sexual contact);
2. cyberstalking, which comprises online monitoring or tracking of users'
actions with criminal intent;
3. online harassment, which consists of unwanted, repeated, and deliberate
threats, abuses, and alarms; and
4. degrading online representations of women through words or images that
invite disrespect or put-downs.
Adam (2001) observes that cyber violence studies disclose that the majority
of perpetrators are men and the majority of victims are women. He reports
that as many as one in three girls reported having been harassed online in
2001 alone. Among children, girls appear to be targeted twice as much as boys
(Finkelhor, Mitchell, & Wolak, 2000).
According to Herring (2002), 25 percent of Internet users aged ten to seventeen were exposed to unwanted pornographic images in the past year. Eight
percent of the images involved violence, in addition to sex and nudity. The
Alberta study of middle school children referred to earlier (Li, 2005) disclosed
that boys owned up to cyberbullying more frequently and girls were more frequently victimized. Furthermore, Mitchell et al. (2001, as cited in Barak, 2005),
in a survey of American teenagers, found that 19 percent of these youths (mostly
older girls) had experienced at least one sexual solicitation online in the preceding year.
Female Perpetrators
Although girls may be more likely targets of cyber violence because of their
location along a hierarchy of power, adolescent girls are increasingly surfacing
as active instigators of cyberbullying. Although Ybarra and Mitchell (2004a)
PROFILE OF TRADITIONAL AND CYBERBULLYING
51
found that males and females were equally likely to report having harassed
someone online, a recent study of 3,700 adolescents (Kowalski, as cited in
Chu, 2005) found that in a two-month period, 17 percent of the girls surveyed
confessed to online bullying compared to 10 percent of the boys. Given that
girls aged twelve to eighteen have been found to spend at least 74 percent of
their time on chat rooms or instant messaging (Berson, Berson, & Ferron, 2002)
this is not surprising. It is even less surprising when considered in the context
of the biological and environmental (socializing) influences that are addressed
in Chapter 4.
Given that preliminary research on cyberbullying discloses a significant
amount of sexual harassment and gender differences in the way Internet harassment is carried out, we cannot ignore role of gender and its manifestations of
online violence. Later, I present examples and statistics that affect and motivate
young men and women and how this in turn fosters affects learning environments (both physical and virtual). These examples inform my discussion relating to judicial and legislative responses to legal claims of sexual harassment in
cyberspace in later chapters. For now, it is important to note that although girls
and women appear to be the primary targets in cyberspace, sufficient research
suggests that girls internationally are increasingly found to perpetrate cyberbullying in groups and are more frequent users of social networking tools.
Male Targets and Perpetrators
Sexual orientation also features heavily in general and cyberbullying. Cases
of general bullying include the devastating suicide of Hamed Nastoh and the
pouring of acid and four-year-long homophobic bullying of Azmi Jubran by
his classmates at Handsworth High School. In Azmi's case, his perpetrators
testified at the human rights tribunal that when friends are teased about being
gay, it is a term of endearment; however, when the insult is directed at someone
who is disliked, the words are meant to hurt. Given the persistent, drawn-out,
and deliberate nature of homophobic bullying that Azmi Jubran and David
Knight endured, the words were meant to hurt. In David Knight's case, he was
described as a homosexual pedophile with invitations to an infinite audience to
write insults and comments below his photograph.
A study conducted by Tolman et al. (2001) at the middle school level in
the United States made important observations relating to sexual harassment
and homophobic bullying at the adolescent level. What they found was that
sexual harassment significantly increased at preadolescence and adolescence. It
was largely perpetuated by male students, who also engaged in homophobic
bullying of their less aggressive male peers. Tolman et al. suggest two reasons --
(1) raging hormones and interest in females and (2) the male adolescents' need
to prove their manhood. In doing so, they engage in sexual harassment of
females and put down males who are either perceived to be competitors or
perceived to have more "feminine" characteristics, resulting in the homophobic
bullying.
52
PROFILE OF TRADITIONAL AND CYBERBULLYING
Intersecting Forms of Discrimination
To complicate matters, in each of the cases discussed here, it is not simply
sexual orientation that invites the derision. Each of the victims mentioned were
teased for something else as well -- in Hamed and Azmi's case, it was the fact
that they were also of Iranian heritage, although both were born in Canada. In
David Knight's case, his intelligence and good looks might have played a role.
In Ghyslain Reza's case, his weight certainly played a role.
CONCLUSION
The nature and forms of bullying and cyberbullying in this chapter should
provide readers with a general appreciation that there are many factors to consider when we talk about bullying. These factors can affect the way that the
law is interpreted and applied. I have not yet dealt with biological and socializing influences on sexual and homophobic forms of harassment. I integrate that
research into my discussions of the various forms of cyberbullying that emerge
through social networking sites and student-created Web sites. It is important
to remember that student expression is not invented by young people. They
draw it from a social context that is largely created by adults. Children and
teenagers are influenced by discriminatory attitudes, hegemonic perspectives,
and androcentric and homophobic forms of language that are embedded in
generations of language. All of these play themselves out in adverse ways when
they are unleashed in cyberspace.
I move now to consider in legal terms, the antiauthority forms of expression
that are causing so much concern among teachers' unions and governmental
authorities.
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Cyber Libel or Criminal Harassment: When Do Kids
Cross the Line?
Cyberlibel is at such an embryonic stage that conclusions would be both pre---
sumptuous and overridden almost immediately by technological advances. Consequently, we feel it is more appropriate to describe [it] . . . as crystal ball gazing.
(Potts & Harris, 2004)
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.
( Hill v. Church of Scientology of Toronto, 1995)
The introductory quotes illustrate the enormous legal dilemmas and concerns
that have emerged with the advent of technologies. Teachers, school and government officials, parents, and students who have been victims of demeaning
online cyber expression are naturally concerned about their hard-earned reputations. In the case of teachers, student online postings that accuse them of
being bad teachers or pedophiles can impact their self-esteem -- and even the
possibility of finding employment or seeking promotions. Because teachers are
in such a position of fiduciary authority vis-à-vis children, school boards may
not risk hiring them if there is any doubt about their ability to take on those
positions responsibly. Hence, many teachers are asking whether the solutions
lie in litigation. If this avenue is adopted, will it in fact make any difference?
Moreover, our systems of common law and stare decisis (adherence to precedent) have been largely based on traditional responses that worked when the
Internet did not exist. Judges who developed many of the legal doctrines at
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least a century ago would never have dreamed there would come a day when
so much expression that might be deemed libelous or defamatory would take
place every second, at global levels. These doctrines nonetheless continue to
inform legal tests that contemporary judges use to adjudicate defamation and
libel decisions. Nor would they have foreseen the permanency and persistence of
such expression or the infinite audiences that would gain access to such expression. Although culturally in the West, it may be seen as expeditious to launch
lawsuits against cyber offenders, the effectiveness of such an exercise is yet to
be determined. Moreover, many judicial systems are already burdened with
heavy backlogs and case loads. My doctoral research on the legal obligations
of schools disclosed that courts set high thresholds even in cases of egregious
physical harm in schools because they want to avoid the floodgates to litigation
(Shariff, 2003). As American lawyer David H. Donaldson observes:
We know that as the Internet grows, there will be more and more lawsuits involving
libel and defamation. . . . The only question is if the number of cases will grow steadily or if there will be an explosion of lawsuits all at once.
(Donaldson, as quoted in Potts, 2004a)
Educators and policy makers need to understand how the law of libel and
slander might help them, but they also need to realize its enormous complexities and limitations, particularly when applied in the context of the Internet. In
this chapter, I address some of the legal considerations that arise by reviewing
landmark cases in Canada and the United States. Before doing that, however, I
believe it is important to take a look at what is happening in other countries to
gain a sense of how countries such as China and India with enormous populations and Japan, which is well known for its technological advances, are coping
and responding.
In Chapter 1, I introduced a few international examples of student expression
on social networking sites, where teenagers demeaned teachers, school officials,
and peers, sometimes in graphically sexual and insulting ways. I begin this
chapter by revisiting and adding to those examples, to highlight the cultural
influences that inform the online expressions and responses to them. I also bring
in statistics from research findings and discuss the legal implications within
cultural and social contexts. One common aspect that is disclosed in the research
is that no matter what country is involved, student perpetrators insist their
"jokes" are taken too seriously and that what they are doing is no different
from graffiti on washroom walls. The pattern among offending students is a
denial of responsibility by insisting their comments were private and directed
toward friends. The difference in legal responses between countries involves a
cultural interpretation. It is also dependent on the threshold of people within
different cultures to accept such expression as pranks and jokes, or to take them
more seriously as actionable torts of defamation, slander, libel, or even criminal
charges.
The refusal by young people to take responsibility for the content of their
online speech suggests the lack of a moral framework, and perhaps insufficient
CYBER LIBEL OR CRIMINAL HARASSMENT: WHEN DO KIDS CROSS THE LINE?
61
or inadequate communication or dialogue with adults, about the parameters of
ethical speech. Is there really the possibility that young people do not recognize
the difference between hurtful and demeaning speech and respectful expression?
As I noted in Chapter 2, when such speech crosses over to become bullying,
there is a definite shift in power, where the content of the expression is no longer mutually agreed upon as teasing.
This might also have something to do with the difference in mindsets that
children apply toward their conceptions of Internet communications compared
with those of adults (Lankshear & Knobel, 2006). I detail this difference in
Chapter 5 in the context of school environment and institutional responsibilities. At this point, it is important to be aware that most teenagers and children
are growing up in a world that is already immersed in the use of technologies.
They seldom distinguish virtual reality from their physical reality -- it is all part of their daily lives. This is why they are so much more proficient in its use
than adults. Adults, on the other hand, continue to apply traditional frameworks when they conceptualize cyberspace. Hence they view online firewalls
as having the same protection as brick walls, when in actual fact they are not
the same; young people who are digitally proficient can easily hack through
them.
Nonetheless, I want to stress that it is not technologies ( mediums) that are at fault in allowing the spread of offending student expressions. It is the messages that are contained in the expression that we ought to be concerned about.
Those messages do not originate in cyberspace; they come from our physical and
social world, and are embedded within our systemic political structures (Shariff
& Johnny, 2007). The tendency is to believe that if we control technologies,
negative student comments and attitudes will go away. We cannot snuff out
the attitudes that inform the expression. To make cyberbullying go away, we
need to educate young people and engage in dialogue that helps them arrive
at their own conclusions about what ethical expression ought to comprise. As
the court cases I discuss in this chapter illustrate, there is a responsibility to
inform students as to when they cross the line from teasing and horseplay to
defamation, cyber libel, and, in some cases, criminal harassment. Young people
need to be shown the boundaries of free expression and be informed that those
boundaries are not unfettered -- they have reasonable limits. However, before
we can teach kids what those legal boundaries are, we need to understand them
ourselves. This is not an easy task because of the capacity of technologies to
evolve at such an incredible rate. As it stands now, however, it is definitely worth an attempt.
To begin, it is important to define "defamation" and "cyberlibel" in the
context of antiauthority and peer-to-peer cyber misconduct or bullying. Therefore, the legal discussion that follows the international case studies begins with
definitions of defamation and libel, followed by judicial interpretations handed
down by North American courts under the law of torts. I bring to light legal
doctrines and tests that are used in adjudication of cases on cyber libel that
bring into clearer focus existing standards applicable to school cases of cyber
libel and inform the policy vacuum for schools. Before embarking on a legal
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discussion of North American cases, it is worth considering some of the cultural
differences and responses to cyber misconduct in Asian countries.
CHINESE CULTURAL INFLUENCES
It is important to put into context the potential impact of technology use in
China. The population of cyber citizens has reached 137 million with an average online time of 16.9 hours per week, according to statistics from CNNIC as
of January 23, 2007. Of China's cyber citizens, 17.2 percent are under eighteen,
and 32.3 percent of them are high school students, which is the highest percentage according to their career (Zhang & Wei, 2007a). The number of mobile
phone users reached 487,434 million by the end of April 2007 according to
statistics from Chinese Informational Industrial Department. Instant messaging service is frequently used, reaching a height of 304.65 billion across the
country, representing an increase of 39.9 percent compared with the previous year. Hence, the influence of the Internet on teenagers has raised concerns
in China. People pay more attention to its influence and characteristics. For
example, a recent "Survey in Media Demand by teenagers under 18" (cited in
Zhang & Wei, 2007b) conducted by the Shanghai Communist Youth League,
Shanghai China Young Pioneers Committee, and Shanghai Social Science Young
Pioneers Research Bureau indicates that the Internet has played an important
role in teenagers' lives. Although they consider newspapers and magazines as
primary "information broadcasting tools," the preference is clearly moving to
use of the Internet because it provides a freer platform for the sharing of opinions anonymously without worrying about political consequences. This is an
especially important consideration given China's human rights record.
Although Chinese government officials have not officially accepted the concept of "cyberbullying," the Chinese media has begun reporting cases and
data concerning cyberbullying that have occurred in foreign countries. Chinese
newspapers are following cyberbullying research reports from the United States
and Great Britain. Chinese educationists, lawyers, media, and Internet experts
have paid more attention to teenagers who were cyberbullied all over the world.
According to Zhang Yang (2006, as cited in Zhang & Wei, 2007b), the "Internet
can easily raise a teenager's anxiety, as indicated through loss of privacy, internet violence, internet threat, internet fraud, internet sex and internet viruses,
which all represent factors for nervousness and anxiety." On the other hand,
given the enormous number of Internet users, the justice system might become
overwhelmed if too many restrictions are placed on expressions. As a result,
there appears to be a higher cultural threshold for pranks and jokes that are
expressed as unintentional, compared with stronger and more litigious or zero-tolerance forms of reaction to similar online expressions in Western countries.
Case 1: Modified Photographs of a Teacher
Recall the example I mentioned in Chapter 1 in which a middle school teacher
in Foshan Guangdong discovered three photographs of his face with a naked
CYBER LIBEL OR CRIMINAL HARASSMENT: WHEN DO KIDS CROSS THE LINE?
63
human body, the body of a monkey, and the body of a chicken respectively
had been posted online, in the Foshan Daily Forum. Xiaorong, the student
who modified the photographs, saw no harm in searching pornography and
animal pictures online and using the Photoshop software to combine several
photographs. He claimed that he did not know he had broken the law, and like
some of the North American and British cases that I discuss later, perceived that
his actions would be received as a joke. He argued the photographs were not
meant to harm his teacher; he simply wanted to make his friends laugh (Zhang
& Wei, 2007b).
In Xiaorong's case, although the police believed he should be punished, they
took into consideration that he had no motivation to insult others subjectively.
Because he was still a high school student, they gave him a warning and fines of
500 yuan. According to Chinese criminal law, those behaviors that harm society
but do not belong to criminal activities are penalized by the public security
organ based on Regulations of the People's Republic of China on Administrative
Penalties for Public Security.1 This case was judged according to the Article 42.2
There was no report as to how the school responded to these actions -- whether
educationally or in any disciplinary forms (Zhang & Wei, 2007b).
This might be because Internet "pranks" or what is called kuso are culturally accepted. These online pranks have become popular in China, but they are quite complex, and warrant a dictionary explanation. Wikipedia ("Kuso," 2007)
explains that online pranks in China have become a product of entertainment
in China, similar to plays or movies. This is the official explanation of Chinese
kuso:
"Kuso" is the term used in the Chinese world for the internet culture that generally includes all types of camp and parody. Generally speaking, an Internet meme is any faddish popular phenomenon on the Internet. The term may refer to the content itself, the subject of the content, or the phenomenon of its spread. It is discrete, identifiable content as opposed to more general things like a philosophy or a trend. It is spread voluntarily, rather than by trickery, compulsion, predetermined path, or completely automated means. Some people liken Internet memes to a form of art, and digital art on the net to a form of meme. An Internet meme may stay the same over time or it may mutate over time, by chance or by the aggregation of commentary, alternate and parody versions, and news about the meme.
A typical Internet meme is simply a digital file that gets passed from one user to others using whatever formats and transmission means are readily available on the Internet (for example, email, blogs, social networks, instant messaging, and the like). Usually, what is passed is either the content itself or a link (such as a hyperlink) to where the content may be found. The content might be in text, video, image, or other format, and might consist of a joke, a rumor, an amusing picture, a video clip, animation, or graphic, or an offbeat news story.
Often, a person or company becomes infamous by virtue of an embarrassing video,
email, or other act. These arise, for example, in the context of dating and relationships, job applications, security cameras and other hidden videos, or collections of bizarre news stories. Many memes are urban rumors, fraud schemes, slander, or false news stories that are either planted deliberately to become a meme, evolve by mistake or rumor, or 64
CONFRONTING CYBERBULLYING
that jump from an offline source to the Internet. . . . Some web services like snopes.com and the urban dictionary collect lists of such hoaxes, or offer services by which users can fact-check popular claims they find on the Internet in order to determine their source and whether or not they are true. This definition of Kuso was brought into Taiwan in around 2000 by young people who frequent Japanese websites and quickly became an internet phenomenon, spreading to Hong Kong and subsequently the rest of China.
("Kuso," 2007)
There is a popular Chinese sentence online that seems contradictory: "If I
like you, I would like to prank you, even though I do not like you but I would
still prank you" (Zhang & Wei, 2007a, p. 3). According to Zhang and Wei, the
behavior of "prank ( kuso)" is a form of bullying.
Cases 2 and 3: Piggy and Little Fat Boy
This form of kuso was also experienced by a second-year high school student, Qian Zhijun, who became known as "Piggy." He acquired the name when dressed as "Piggy" in a transportation security fair. One of his poses as a pig
was captured by someone on camera. The pictures were posted on the marketing
for the fair. Photoshop was used to combine Piggy's face with Dingdang Cat,
Ali Baba, Shrek, Mona Lisa, the Statue of Liberty, and Jia Baoyu. According to
Zhang and Wei's (2007b) report, Qian soon became the first person abused by
the Internet in China. Someone even called him "Changeable Piggy." Since then,
Piggy has become a popular part of movie posters in China. According to the
report, Piggy initially said "he felt bad and terrible at the very beginning. After that, he thought most people were not deliberately trying to hurt him because
most of them described Piggy as cute and funny" (Zhang & Wei, 2007b).
Similarly, in another famous Chinese case of kuso, the face of a young overweight student described as a "common and normal picture of him" on the Internet (Jaishankar & Shariff, 2008) attracted thousands of people who signed
on or hacked into the site to alter and make fun of their target, whom they
named "Little Fat Boy."
Case 4: Ning's Sexual Harassment of a Teacher
Ning was a second-year student in high school of Dian Jiang District,
Chongqing Province. During the summer of 2004, Ning used his father's cellular
phone to send several instant messages containing sexual insults to his Chinese
teacher Xiao's phone. Xiao reported this to school principal and warned Ning to
stop his improper behavior. Ning admitted he was at fault. Xiao also demanded
a personal apology, which Ning refused. Xiao took legal action in December
2004. The court determined that Ning used sexual message insult Xiao deliberately and that his behavior intruded on Xiao's personal rights; however, because
Ning was aged under eighteen years, his guardians were deemed responsible.
Finally, Ning's guardians wrote an apology letter and paid 500 yuan for mental
damages.
CYBER LIBEL OR CRIMINAL HARASSMENT: WHEN DO KIDS CROSS THE LINE?
65
This case again is interesting from a range of perspectives. Although the
teacher was initially agreeable to an apology and compensation for mental
damages, the student maintained that he was simply joking and that he only sent
her one message for fun. In China, it appears that the courts consider parents
to be responsible for the student's behavior with no reference to whether the
school has an obligation to educate against these forms of online expression.
The report from my Chinese colleagues (directly from the translation) suggests
that the school ought to take an educational responsibility:
What Ning did was just broken the school's rules. The teacher should educate the student but not sue the student. However, after the judgment, both parties did not look for appeals. Concerning about the case and the popularized instant message harassment phenomena, Dian Jiang District Court's judge Huang thought that sending instant messages deliberately could easily cause the violation of rights. However, if those activities want to be defined as violation of rights activities, there must be validated evidences.
In this case, Ning admitted the written material about the instant message harassment. The material became the key evidence for the case and determined the judgment.
(Zhang & Wei, 2007b, pp. 5--6)
Another emerging area of cyberbullying in China is referred to as Internet
slander. This involves openly insulting others using force or other methods or
fabricating stories to slander others. Under Chinese law they are considered
guilty according to Article 246.3 Zhang and Wei (2007a, July 22, pp. 6) report
that there is a lot of slanderous behavior on the Internet. Following are some
examples.
Case 5: Internet Slander
Wang Shunhe stole a password from a Web site and used it to send insulting
instant messages to another student, Zhou, and Zhou's family. They claimed
that this caused psychological damage to the entire family from September 24,
2003, through October 2, 2004. Wang Shunhe also used the Internet to post
a thread containing insulting words. He also published the names and phone
numbers of members of the family. Family members were inundated with phone
calls from across the country and even as far as Singapore. Strangers from
Singapore called Mr. Zhou to arrange a one-night stand with his daughter. This
action destroyed Ms. Zhou's health and destroyed her reputation. The family
filed criminal action and Wang Shunhe was eventually sentenced to two years in
prison. The court's opinion in this decision, as we shall see later in this chapter, is not significantly different from North American cases, although in China
there appear to be extremes -- either imprisonment or simply a fine.
The case examples suggest that the Chinese are not immune from cyberbullying and that additional studies are needed to understand its real extent in
a country with such a large population. I am especially interested in the kinds
of responses that will emerge to reduce it.
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Case 6: Cyber Vigilantism
Most reports in China relate to adult on adult cyberbullying. In a well-known
case of cyber vigilantism that turned into cyberbullying, a man posted information about another individual who allegedly had an affair with his wife. He
identified his wife's suspected lover by his Web name. This led to a series of
postings that revealed the man's name, phone number, and address. Thousands
of Web postings denounced the lover, and Internet users telephoned or showed
up at his home to shout abuse at him and his family. Lawyers are now calling on
the government to protect people from having their personal information made
public on the Internet (Bartlett, 2007). Administered in anonymous cyberspace,
cyber vigilantism can impinge on many personal and privacy rights.
JAPAN: NETTO IJIME
In Chapter 1, I provided some shocking cases of cyberbullying. They were
shocking because Japanese culture has always presented itself as polite and
nonconfrontational. Yet the pressures on young people in a highly competitive culture have been emerging as bullying since 1984. Ijime (bullying) was first identified as a social problem in Japan in 1984--1985 when sixteen pupils committed suicide under suspected bullying circumstances (Morita et al., 1999,
cited in Yoneyama & Naito, 2003). Senoo (2007) explains that since 1985, the
number and variety of ijime cases have rapidly increased. Among scholars it is widely believed that the nature of ijime is related to Japanese cultural and social characteristics such as collectivism and homogeneity (Akiba, 2004; Rios-Ellis, Bellamy, & Shoji, 2000). However, as Hasegawa, Iwasaki, and Nakata (2007)
explain, although several severe cases have been reported, there have been no
scholarly reports yet on the topic of cyberbullying.
Japan is considered to be digitally ahead of the rest of the world by at least
two generations (Mitchell, 2004), and children are exposed to digital gadgets
at a very early age. However, the research on technology use in Japan is surprising, given the number of serious cases of cyberbullying that have surfaced.
Approximately half of eleven-year-old Japanese children use the Internet; however, only about 20 percent were regular users in 2004. Hasegawa, Iwasaki,
and Nakata (2006) asked students to answer the question: "I have a computer
at home, but I don't use/am not allowed to use the computer." They report that
even though many high school students own computers, a large percentage of
them do not use a computer even if they have one at home. Computer use
among elementary schools is even lower.
Two of my graduate research assistants, both of whom have lived and taught
in Japan, Julie d'Eon and Yasuko Senoo (2007), began to investigate the prevalence of cyberbullying in Japan. Initially, their research disclosed little research on the topic, with the exception of Professor Hasegawa's study. However, they
stumbled on a police Web site in Japan and found numerous Japanese cases
of cyberbullying -- or netto ijime (bullying on the Net). Readers will see many CYBER LIBEL OR CRIMINAL HARASSMENT: WHEN DO KIDS CROSS THE LINE?
67
similarities in the cases that follow to those reported by Western media on what
has been taking place among American and British students.
Cases 1 and 2: Female Perpetrators
d'Eon and Senoo (2007) found that girls, who are generally perceived to be less
assertive, undertook what is believed to be first case of cyberbullying in Japan.
A few Grade 9 girls (approximately age thirteen) bullied a Grade 7 student
(approximately eleven years old) using a cell phone camera. They took her to a
washroom in a shopping mall, removed her clothing, and took pictures of her
naked, using two of the group members' cell phones. They then showed the
picture to friends and threatened the victim that it would be shown to more
people if she reported the incident to teachers. One of them sent the picture
to another friend by cell phone. In this case, the school intervened, deleted
the picture, and stopped it from being further disseminated (Hasegawa et al.,
2007; Senoo, 2007). In February 2007, six other middle school girls in Kobe
used their cell phones' digital cameras to photograph another naked (female)
victim. They posted the photographs on a bulletin board, inviting online visitors
to rank their favorite parts of her body.
The Kobe Prefectural Police filed charges for engaging in obscene acts (Senoo,
2007). The police response in Japan reflects the criminal law approach adopted
in China to address issues of cyberbullying.
Case 3: Flaming
Another criminal case involving Internet flaming involved two Grade 9 male
students, who sent around 800 anonymous e-mails to a female student's cell---
phone via their home computer in mid-December 2006. These messages said
"Die! Feel sick to be with you! Ugly! . . . Do not come to school!" and so on.
The victim's parents found her depressed and asked the police for advice. The
boys were arrested for unreasonable nuisance under the prefectured measures.
The prefectured measures set down the maximum of six months of imprisonment and the maximum of 500,000 yen (around $5,000 U.S.) in fines for
unreasonable nuisance (Senoo, 2007).
There are two Japanese cases of cyber misconduct that were dealt with under
libel and slander. Ironically, in North America, anything involving pornography
would automatically be dealt with under criminal laws, whereas in Japan, this
particular case was treated as libel.
Case 4: Pornographic Novel as Libel
In November 2006, a Grade 9 male student in Akita saw his name used on
a pornographic novel Web site. The student was mentally shocked and could
not attend the school for a few days. His name was used with the names and
depictions of female students in indecent scenes of a novel. The novel was
written by anonymous readers using computer and cell phone relay formats.
The victim talked to the police, and the matter was under investigation for libel.
The Web site administration deleted the novel in December at the request of
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the police (Senoo, 2007). Similarly, an openly violent case of physical assault
that was filmed and uploaded, was dealt with as slander, rather than as assault.
Case 5: Physical Assault as Slander
In November 2006, a first-year high school student in Sapporo posted moving
images of himself undergoing physical bullying by several classmates. Two of
the offenders, one boy and one girl, were subsequently suspended from the
school. In December 2006, eight members of a high school baseball team in
Nagano Prefecture were found to have slandered a teammate on a bulletin
board. Six offenders were ordered to be restricted to their homes, and the team
was banned from competition for three months.
Some of these differences between Japanese responses to various types of
online misconduct might be better understood within its highly distinctive cultural context.
Cultural Considerations: Ijime and Netto Ijime
When Japanese parents use the term ijime (bullying), it usually describes
extreme psychological and verbal aggression rather than physical aggression
(Smorti, Menesini, & Smith, 2003). In that connection, it fits well within verbal and psychological forms of cyberbullying. Another main characteristic is
its collective nature. Because Japanese students spend so much time together
in groups, individual leaders single out one member of the group for bullying.
The rest of the group follows the leader in isolating the victim (Akiba, 2004;
Morita & Kiyonaga, 1994).
Researchers have found that in Japan, 80 percent of the bullying is carried
out by a peer group rather than individuals. It happens in close friendships
in which the victim is not excluded from the group but harassed for a period
before it is someone else's turn. Not unlike patterns found in Western countries, it is students who are perceived to be "good students" that perpetrate
and are involved in bullying rather than those who are generally perceived as
"problem kids" (Gibson, 2006). Ijime has changed its character as traditional Japanese communities collapse and give way to economic and technological development. According to Akiba: "privatization (individualism), along with
economic changes in [Japanese] society, have collapsed traditional Japanese
communities" (Akiba, 2004, p. 220). He observes the importance of examining
the impact of the gap between societal change and the traditional role of schools
to foster Japanese cultural values. Senoo (2007) explains that with technological advances, netto ijime is becoming more prevalent. McVeigh (2003) suggests that the technology necessitates individual practices that isolate the individual from the social masses. In Japanese culture, this is a new phenomenon.
Because of Japanese homogeneity, victims are generally targeted for personal
characteristics or through sexual forms of harassment. Non-Japanese students
are rarely mistreated. Rather, they are more likely to be treated as idols because
of their racial difference. Akiba has suggested certain invisible characteristics of Japanese victims (2004). From her interviews with middle school students, she
CYBER LIBEL OR CRIMINAL HARASSMENT: WHEN DO KIDS CROSS THE LINE?
69
found common characteristics of victims, such as "selfish," "persistent," and
"noisy," that trigger the feeling of irritation in the ijime perpetrators. These types of behavior cannot be easily accepted in Japanese society. Historically, for complex reasons of traditional social organizations, collective power rather
than individuality was required for survival. This collectivism exists deep inside
Japanese society and is tacitly understood. In this context, being selfish, persistent, or noisy are not understandable behaviors. The person who behaves
in these ways is reactively perceived as different from others. Senoo refers to a
well-known Japanese proverb: "The nail that sticks out gets hammered down."
The victims are chosen "because they are somewhat different from others"
(Tanaka, 2001, p. 463) in their behavior. Accordingly, difference can be a point
of contention even in homogenous societies and perhaps more so to encourage
conformity to the normative culture.
Regarding limited use of computers, despite global perceptions that the
Japanese would be avid users of the Internet, Senoo (2007) explains that the
Japanese have some strong and unique traditional beliefs in their everyday
life that are quite different from those of most religious communities. While
Japanese Shintoism is considered a religion, it is largely practiced through tradition, ritual, and myth. These traditional beliefs have a great influence on their behavior and thinking. One of these traditional beliefs is that hard work is more valuable than smart work. The person who uses a computer or the Internet for his or her homework would be considered as being lazy. Many teachers and schools prefer their students to take their time doing homework using "hard-copy" materials (i.e., books, newspapers, and dictionaries); hence, they do not
strongly recommend that students use computers and the Internet unless there
is a special need to do so. This cultural preference might be a main cause that
formed the resistance to the implementation of computer education in schools.
Gakko Ura Saito: Mobile-Bullying
The findings relating to cellular phones are different from home computer use in
Japan. This form of technology is far more popular among Japanese students.
These findings are corroborated in Professor Hasegawa's study (Hasegawa
et al., 2006), in which he and his colleagues reported a high rate in students'
cell phone use (junior high school students, 80.8 percent and senior high school
students, 92.9 percent). Hasegawa et al. (2007) also report that 85.7 percent
of the junior high school students whom they surveyed and 96.6 percent of the
high school students had their own cell phones.
Interestingly, 80.8 percent of the junior high school students and 92.9 percent
of the high school students did not have any restriction on their cell phone use.
It appears that Japanese parents are less worried about cell phone use because
they cannot attract viruses. Apparently, parents do not make the link that cell
phone technology and Internet communication are integrally connected and
that text messaging and photographs taken on cell phones can easily be posted
and dispersed online. Moreover, as Hasegawa et al. observe, parents are more
worried about students engaging in blogging and chatting, which could detract
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from their schoolwork. As the statistics suggest the use of mobile phones is very
popular. This is partly because of the expense of landlines in Japan. This has
resulted in considerable "mobile-bullying" among students. Pupils have created
clandestine school sites (known as gakko ura saito) that can only be accessed via mobile phone. These sites have created a new form of group bullying that encourage an entire generation of what Professor Hasegawa calls "anonymous
slanderers" (Hasegawa et al., 2007).
As Senoo comments, in the old-style ijime, at least the tormentors were
known. The electronic version is as vicious, if not more so, because electronic
communications afford complete anonymity. As I have noted in the profile of
cyberbullying, among its key features is its anonymity, which makes it far more
difficult for school authorities to identify the instigators, intervene, or implement disciplinary and educationally preventative measures. This dichotomy in
the cultural orientation toward reduced use of computers to do "work" and
the increased incidence of cyberbullying using both cell phone and Internet
technology is specific to Japanese culture for the reasons explained earlier.
Ijime-jisatsu (Suicide Linked to Ijime)
Another cultural aspect of netto ijime is the increased rate of suicide among young people. Ijime-jisatsu is one of the disastrous and culturally incidental consequences of the ijime phenomenon in Japan. The number of reported cases of ijime-jisatsu had been decreasing for the last two decades before the minister of education received the anonymous suicide note on November 6, 2006.
Senoo (2007) cites a BBC newscast that reported five students killing themselves in four days in November 2006. Following these cases, the police force
determined that ijime was involved in fourteen of the forty cases of student suicides in 1999--2005 after previously reporting that there was no such case in January 2007 (Senoo, 2007). As of February 2, 2007, two suicide cases in
2006 had been officially determined to be ijime-related cases by the police. The number increased dramatically by November because of the lack of appropriate intervention.
As Senoo observes, there are some traditional Japanese beliefs and values that
make this act an incidental solution of the ijime problem in Japan. Unlike other societies, this solution is not strongly tabooed in Japanese society because of their historical warrior culture ( Bushido), which traditionally regarded suicide
"as a responsible way to deal with a problem when faced with no other option"
(Hogg, 2006). This view has not yet completely changed even though Japanese
lifestyle became modernized a while ago.
Another traditional belief underlying Japanese suicide is its high value on
patience related to group harmony. Chinese business management advisor Song
Wenzhou comments that Japanese society demands extreme efforts and patience
to ensure harmony of its people. Consequently, teachers and parents push victims of bullying to struggle with the problem or make better efforts to integrate
into the group, leaving some of them few options other than suicide (Song,
2006). This statement is supported by one actual ijime-jisatsu case in Iwaki, CYBER LIBEL OR CRIMINAL HARASSMENT: WHEN DO KIDS CROSS THE LINE?
71
Fukushima. The Fukushima District Court allocated 30 percent of the responsibility for one suicide victim's demise to the victim's parents because they forced
him to continue attending school despite the bullying (Ito, 2002, as cited in
Senoo, 2007). The forced return to face his perpetrator was built on the notion
of Iwaki-shi ijime-jisatsu jiken hanketsuni tsuite. This means "Japanese form their identities based on their role and responsibility in a group" (Shiizu & Levine, 2001, as cited in Akiba, 2004, p. 231). This treatment, although seen as
reasonable and natural in Japanese society, has negative implications for children in the formative years of identity development. If they are excluded or not
given any roles or responsibilities within the classroom group, the psychological
damage is enormous.
SOUTH KOREA
Cyberbullying has also emerged as a concern in South Korea where the government has implemented a law to prevent Internet misuse. South Korea's Ministry
of Information has developed a law that will no longer enable cyber perpetrators to hide behind false identities. The new law took effect in July 2007 and
will compel Internet service providers (ISPs) to track the originators under the
"Internet real-name system" by recording the identification records of users
when they post entries. Portal operators will be obliged to disclose personal
information such as names and addresses of cyber attackers when their victims want to sue them for libel or infringement upon privacy. Ministry director
Lee Ta-Hee observed that "South Korea is an internet powerhouse and it is
probably the most wired country in the world. But sadly, the dark side is too
dark" (Bartlett, 2007). In South Korea, online mobs distribute victims' home
addresses, credit card details, and even their employer's phone numbers. All
of Korea's police stations now have a cyber-terror unit to help deal with the
problem. The number of cases referred to Korea's Internet Commission tripled
last year. The cyber-terror unit recognizes the impact on victims' social status
as well as the fear that this generates. According to Chun Seong Lee, liaison
officer at the Cyber-Terror Response Centre, cyberbullying and cyber crime
occurs so often in South Korea that it is affecting people's social lives, causing
people to drop out of work and school and leading to mental illness.
INDIA
Although there are many Western studies related to cyberbullying, there is
no empirical research in India to unearth this modern phenomenon. Jaishankar
and Shariff (2008) cite an unpublished Indian study that found mobile-bullying
to be common among the school students. This study investigated the nature
and the extent of school students' experience of cyberbullying using mobile
phones. The results showed that 65 percent of the students were victims of
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cyberbullying using mobile phones, and 60 percent of the respondents had
also been involved in bullying others using mobile phones.
Although bullying is considered to be a serious issue predominantly in Western countries, according to Indian criminologist Jaishankar (Jaishankar and
Shariff, 2008), bullying in India is an acceptable part of the culture within and
between people from different castes. He notes that bullying in schools or colleges is prevalent. It is sometimes called "ragging," or, when directed at young
women, it is known as "Eve teasing" (teasing a virgin). Consequently, few
laws or policies to address bullying have been put in place. Given the enormous
surge in technology, and the involvement of Indian computer programmers and
information technology workers in outsourced U.S. technology firms, the use
of modern technologies such as Internet and mobile phones has proliferated,
increasing the prevalence of bullying by school and college students. Today,
Internet and mobile phones have become part of everybody's lives, and most
students carry mobile phones. Although this may seem to be more of a playful
prank than a serious offence, it is only the beginning of a trend that can escalate into a serious problem. In this case, the teachers intervened, and the problem
was eventually resolved. According to one Indian news report, "In India, where
younger and younger kids are discovering the power of the Internet cyber bullying has already started trapping Indian teenagers in its insidious Web" (Kapoor,
2003).
Although few formal studies have been undertaken, a cursory look at Orkut
(a social networking Web site; www.orkut.com) shows many similar postings to
those on Facebook and MySpace. There is more information available on adult
cyber abuse and cyber crime and little so far on cyberbullying among students.
Orkut came to India in February 2006 with a mission statement claiming to
help people create a closer, more intimate network of friends and hoping to
put them on the path to social bliss, similar to Facebook. It is apparent from
the mission statement that the network was established to enable people to
interact with each other across the globe by bridging geographic distances.
However, according to Rahul (2007), it has since been used for superfluous
activities leading to moral degradation and upheaval. A management student
from Mumbai was arrested by the police following a girl's complaint about
tarnishing her image in the public forum -- namely, Orkut. The boy was trying
to entice the girl for some time. He threatened her with dire consequences when
she resisted his advances. Later, he posted an obscene profile of her on the Orkut
portal along with her mobile number. The profile has been sketched in such
a way that it draws lewd comments from many who visit her profile. Later,
the boy was arrested under section 67 of Information Technology Act of 2000
(India has no separate law for cyberbullying).
According to Kapoor (2003), legal experts in India do not believe this legislation has a lot of teeth to reduce cyber crime because it was initially designed
to promote e-commerce. It is not effective in dealing with cyberstalking, cyberbullying, and other forms of online harassment. Kapoor explains that the law
does not even define "cyber crime." A brief search in the Orkut profile will reveal CYBER LIBEL OR CRIMINAL HARASSMENT: WHEN DO KIDS CROSS THE LINE?
73
"many modified profiles of beautiful girls" (Sengupta, 2006). More recently,
India has brought in an Internet censorship policy (Fratina, 2007) allowing it
to close down offensive Web sites and blogs. A number of actions have also
been brought under cyber-defamation laws.
In another case involving Orkut, a malicious profile of a Delhi schoolgirl
was uploaded onto the site. The perpetrators posted obscene photographs and
contact details such as her home address and telephone numbers on the profile, using suggestive names such as "sex teacher" to describe her. The matter
came to light after the girl's family started receiving vulgar calls; thereafter
her father contacted the cyber cell of Delhi Police's Economic Offences Wing.
According to the Delhi police sources, the girl is a student in a South Delhi
school. The obscene pictures and personal information brought two strangers
to the girl's door suggesting that the girl had invited them for sex through
Internet. This is the second incident demonstrating Orkut's misuse in New
Delhi. Earlier, a flight attendant alleged that someone had opened an account
in her name on the Web site, in which she was described as a "sex struck
woman."
The majority of cases reported by Jaishankar (Jaishankar & Shariff, in
press) relating to Orkut involve sexual harassment of women. The unpublished
research report by my law student, Sakina Fratina (2007), includes information
on India's first case of cyberstalking. Ritu Kholi complained to the police that
a person had been using her identity to chat over the Internet at the Web site
www.mirc.com for four consecutive days. The individual was using obscene
language and giving out her telephone number, encouraging them to call her at
odd hours. Consequently, she received over forty calls from Kuwait, Mumbai,
and Ahmedabad. Finally, the IP (Internet protocol) address was traced, and
her perpetrator was arrested under the Indian Penal Code, which among other
crimes prohibits the interference with a woman's modesty. There have also been
cases in which school principals have been insulted on Orkut.
The foregoing cases of international cyberbullying and the cultural considerations that are specific to the countries involved provide a general idea of
the forms of cyberbullying that have begun to emerge on the Asian continent
and surrounding areas. The responses to such cyber misconduct appear to lean
more heavily toward the criminal justice system than toward the law of torts
(libel and slander). In many ways, it is not far different from the legal positivist approach that is prevalent in the West, as we shall see later in this book.
Notably however, in largely populated countries such as India and China, there
appears to be a higher legally accepted threshold for insults and pranks against
others. As I mentioned earlier, this may be a way of reducing the floodgates to
litigation and keeping perpetrators out of jail.
There is an urgent need for increased and more focused research relating to
Internet use, digital literacies, the use of mobile cellular phone systems, and,
more particularly, school responses to those forms of cyber communication
in Asia. Technological advancement is moving so quickly that it is difficult
for researchers, academics, and policy makers to keep up. The educational
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component to addressing cyber bullying is largely missing from all these countries. As we saw in Japan, India, and South Korea, it is largely the police and
not the school that becomes engaged. In China, the parents share responsibility,
as they do in Japan.
Is the picture any different in the Western Hemisphere and "down under" in
Australia? I turn now to consideration of emerging legal responses in the United
Kingdom, United States, Canada, and Australia, as they are applied under the
law of torts for cyber libel.
TORT LAW: CYBER LIBEL, DEFAMATION, AND SLANDER
Tort law involves legal remedies that are applied to correct "wrongs" committed intentionally or unintentionally (Linden & Klar, 1994). There are two
areas of tort law relevant to cyberbullying of peers and authority figures:
libel and negligence. Given that there is so much concern by school authorities about the antiauthority version of cyberbullying on social communication networks, I begin this review by taking a look at the issue of libel as a
tort -- or wrong committed intentionally or unintentionally, and the impact of
libelous comments on targets of such expression (teachers and school authorities). Some legal definitions of what we mean by libel and defamation are in
order.
An 1840 case continues to provide the classic definition of "libel": "A publication without justification or lawful excuse which is calculated to injure
the reputation of another by exposing him to hatred, contempt or ridicule"
(B. Parke in Parmiter v. Coupland, 1840).
When we consider student online expressions relating to teachers, we can
deduce that such comments expose them to "hatred, contempt, and ridicule"
and that they are not justified. The question arises when the students insist
that their expression was not "calculated to injure the reputation." Such a
defence might be more difficult in cases in which photographs are modified to
depict sexual poses or when visitors are invited to post derogatory comments.
Where the line becomes a little more blurred is in cases that involve student
conversations about their teachers on social networking sites such as Facebook.
Consider, for example, several North American cases.
KIDS' PERSPECTIVE -- THEIR OWN PRIVATE SPACE
As the cleverly selected name for the popular networking tool MySpace.com
suggests, young people perceive the online communication spaces as their own --
this is "my space" or "our space" and adults should not be privy to what we
say. Consider the following case examples of cyberbullying as reported by news
media.4 The first case is that of Brad Parsons.5
CYBER LIBEL OR CRIMINAL HARASSMENT: WHEN DO KIDS CROSS THE LINE?
75
Case 1: Brad and His Online Friends
Post meant for friends only, teen says:
Brad Parsons says he never imagined he'd be bounced from his school and see friends arrested when he created a Facebook group for his friends to use to vent about a vice-principal. "We made the group as an inside joke," the sixteen-year-old student at Birchmount Park Collegiate said in a phone interview.
But the teen who "likes hanging out and chilling" with his friends and says he's never caused any trouble, stepped into a grey area when he created the space on Facebook.com, a popular social website, that slagged his school's vice-principal, Mary Burtch and other staff.
Internet experts say Parson's case once more raises interesting questions that don't have clear answers.
"These issues are arising with increasing frequency and I think it's tough to identify how much of this is a legal issue, how much of this is a conduct issue within a school," said Michael Geis, Canada Research Chair of Internet and E-commerce Law at the University of Ottawa. "I think it is hard to identify a right or wrong."
For instance, does a conversation intended to be privately shared among friends, as Parsons says, constitute cyberbullying, as the school says, if it becomes publicly available?
Parsons argues that while the comments made were mean-spirited and made fun of
Burtch, they shouldn't be considered bullying because they were not intended to be seen by her. "It was not online harassment," Parsons said. "We were not in any way trying to get the message to her. We were just talking amongst each other."
Parsons, who plays house-league hockey and is studying to take his G1 driving test, led a protest Friday to decry the school for "suspending people and suspending freedom of speech and opinions on a private chat line."
Four other Birchmount Park students were suspended earlier this week after school
administrators discovered the derogatory comments on the website.
What started as a protest with fewer than 100 students tripled in size after someone pulled a fire alarm. Four students were arrested when police were pelted with objects as they tried to direct traffic.
Parsons was told Monday he would be expelled from school but has since heard his
punishment might be lighter. He has a meeting tomorrow with the school board that he hopes will clear things up.
His mom, Sylvie, 52, said that as punishment she is taking away Internet access from her son. But she noted that when she went to school, she and her other friends would stand around and say mean things about teachers.
"The technology has changed so it's become a much different thing now," she said.
Parsons said he and his friends have long had problems with Burtch, who Parsons says has singled them out because they hand around in the back of the school where there have been problems caused by students not in his group.
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Parsons, whose favorite classes are English and drama, says he was getting good grades and was finishing an essay on MacBeth when he was expelled. "I'm losing out on my education because of this and it's going to set me back," he said.
(Chung, 2007)
In Brad's case, it is clear from the support he received that he and his fellow
students believed strongly that the comments they made were "private" and
not for the eyes of school authorities, least of all Ms. Burtch and her staff. The
student protest comprised resistance to the idea that any rules were breached.
The students argued that although the comments were mean-spirited, they were
not by any means meant to personally harass Ms. Burtch or her staff and hence
should not be defined as cyberbullying.
Brad's case is no exception. There are hundreds of such incidents being
reported in the news globally, involving statements by students about school
authorities. Consider Bram Koch's situation, for example. Bram took a similar position regarding his freedom of expression rights and focused less on the
libelous connotations of his online "joke" that he saw his teacher masturbating
in the back of the class.
Case 2: Bram's Bad Joke
Bram Koch, a student at Willowbrook Public School in Ontario, appeared in a
radio interview with his father, David Koch, on a Canadian Broadcasting Corporation Radio One talk show, The Current (Findlay, 2007). Bram explained
to a national radio audience that he did not realize his joke about his teacher
would cause so many problems. Bram wrote a joke about his teacher on a
friend's Facebook saying that he had seen her masturbating at the back of the
classroom. This was brought to the school administration's attention. Bram
was subsequently suspended from participating in a field trip to Montreal with
his friends that he had been excited about attending.
Neither Bram nor Brad thought twice about the possibility that adults
might see what they wrote online, both believing it to be a private space
for kids. Moreover, both explained that their expressions were just jokes to
be shared with friends. Neither boy realized the ramifications or impact of
their very public words. Bram admitted that he never thought of this as cyberbullying.
Moreover, neither boy gave any thought to the possibility that millions of
people access Facebook (Jenkins & boyd, 2006; Roher, 2007). Even with the
privacy settings on, the comments on their wall are accessible to friends. What
their friends make accessible to others who are not part of the original group
is where Facebook conversations can move easily from a private domain into a far more public one. Similarly when photographs are tagged by friends, even if they are within a person's privacy settings, those friends may provide access to
many other registered communicators. The posting can spread quickly to the
computer screens of thousands. Moreover, when comments like this are made
about authority figures, rumors among school kids circulate faster, motivating
CYBER LIBEL OR CRIMINAL HARASSMENT: WHEN DO KIDS CROSS THE LINE?
77
hundreds of kids to log-in within minutes, with the specific purpose of reading
the comments. It takes only one whistle-blower to report the posting. Alternately, as more adults, including prospective employers, join Facebook to ver---
ify the profiles of applicants, what might have started as a private conversation
among friends can become highly public. As both these boys found out, this
can lead to a lot of trouble.
Although both boys admitted their jokes were mean-spirited, neither conceded that the school should have the right to intervene. Both insisted that
they really believed they were having private conversations. Bram stated that
although he no longer uses Facebook, he will continue to look for other spaces
(presumably online) where he can communicate privately with his friends.
In both cases, the boys were angrier about the school response than ashamed
of their comments. They did not seem to care that when placed in a "public"
forum like the Internet, their words might be interpreted as undermining school
authority, which in turn could impact the school environment and the learning of all students in the classroom. When asked whether he still attends the
teacher's class, Bram said he sits in the back of the classroom and does not look
at her. They do not speak at all.
Brad's supporters who carried signs supporting free expression did not
believe he did anything wrong. Research suggests that most preteens and adolescence would agree. An Ipsos-Reid poll conducted for Microsoft Canada in
2007 found that 70 percent of respondents aged ten to fourteen said they believe
the information they put online is private (Thomas & Canadian Press, 2007).
In the United States, there have been similar student protests.
Case 3: Indiana Outrage
Similarly, students in Indianapolis publicly protested suspensions for online
postings on MySpace. A Fox News report, in usual sensational fashion, reported
the following:
Indiana Students Outraged over Schools' Blog Crackdown.
Increasing crackdowns on what educators deem inappropriate online behavior have
outraged students and free-speech advocates who see them as pursuing school rules too far beyond the classroom.
The battleground is online journals, or blogs, and popular Web sites such as MySpace.
com where teens post comments about their daily lives -- including school.
School officials say such postings can be disruptive to education; critics say schools should not have the power to punish students for comments posted from a home computer.
"The school system has no right to sit there and tell us what we can and cannot do at home. They can control what we do at school, but when it gets home, the only people who can tell us what to do is our parents, not the school," said Kayla Wiggington, a 17-year-old junior at Whiteland High School in suburban Indianapolis who uses MySpace to keep in touch with friends.
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The school board in the Whiteland-based Clark-Pleasant school district will vote October 17 on a proposed policy that would put students and teachers on notice that they are legally responsible for anything they post online, including material deemed defamatory, obscene, proprietary, or libelous.
(Associated Press, 2006; emphasis added)
The American students, like their Canadian counterparts, also perceived
their social networking spaces as their own territory. Cyberspace has become
their play space away from adults. They see it as empowering and liberating,
and it comes as a shock when they are discovered and punished. They almost
feel betrayed, and in many cases are pushing back with lawsuits, a matter that
I discuss in Chapter 4. Ironically, Brad and Bram are not much different from
the boys on Golding's island in Lord of the Flies, who created their own ethical rules in the absence of adult supervision.
As Suler and Phillips (1998) suggest, cyberspace provides a venue for people
to express aspects of their personalities that they cannot express in physical
spaces. They do this to seek recognition and validation of those spaces. Moreover, these researchers suggest that such expressions are a cathartic form of
venting for students whose frustrations are not addressed in physical spaces.
The same Fox News story also quoted a school official from a separate school
that had also expelled students for writing racial comments about their teachers
on MySpace. The school official is quoted as saying "Kids look at the Internet
as today's restroom wall. . . . They need to learn that some things are not acceptable anywhere" (Associated Press, 2006). What is acceptable? I begin with a
look at Canadian tort law for answers, followed by American judicial decisions.
CYBER LIBEL: THE CANADIAN CONTEXT
According to Canadian lawyer David Potts (2004b), Canadian cyber libel law is
grounded in a British court decision that goes back almost 100 years ( Vitzelly v.
Mudies Select Library Ltd., 1900) The case was adopted into Canadian jurisprudence when it was quoted with approval in Newton v. Vancouver (1932), and held that
The defendant in the defence of innocent dissemination will succeed if the defendant shows:
i) that he was innocent of any knowledge of the libel contained in the work disseminated by him;
ii) there was nothing in the work or the circumstances under which it came to him or was disseminated by him that ought to have led him to suppose that it contained a
libel; or
iii) that when the work was disseminated by him, it was not by any negligence on his part that he did not know that it contained the libel, then although the dissemination of the work by him was prima facie a publication of it, he may nevertheless on proof of the earlier-mentioned facts, be held not to have published it.
CYBER LIBEL OR CRIMINAL HARASSMENT: WHEN DO KIDS CROSS THE LINE?
79
This decision might absolve some of the students who claim they "were innocent of any knowledge of the libel . . . disseminated by them" or that "ought to
have led" teachers or peers to suppose that their expression contained libel.
However, a hundred-year-old case is a little difficult to apply given the context
of the Internet and the ability for rapid spread of online postings. When we discussed some of the international cases, I purposely avoided providing definitions
of libel, defamation, and slander because I do not at this time have their exact
legal interpretations. However, in Canada, Bernstein and Hanna explain that
cyber libel can comprise either defamation and/or libellous written comments:
Simply defined, defamation is the making of a derogatory statement to a third party that discredits or impugns the reputation of a person, where the statement is not defensible on the grounds that it is true, fair comment or protected on some ground of privilege.
(Bernstein & Hanna, 2005)6
Bernstein and Hanna confirm that generally libel is defamation in a fixed
medium (written or permanent form), whereas slander is oral defamation (spoken words not recorded or fixed in any medium). In this regard, most defamation on the Internet is properly characterized as libel, whereas verbal comments,
insults, and threats made over cell phones might be considered to be slander
because they are made over electronic airwaves. Text messaging via cell phones
would be constituted as libel. Bernstein and Hanna explain that although cyber
libel is not a new cause of action or an independent tort, it has several distinguishing features and complexities. I suggest that these features are pertinent
to cyberbullying among adolescent peers.
First, as I have already observed, defamatory comments that are posted on
the Internet can be read by a vast audience. Consider, for example, Ghyslain
Reza. This fourteen-year-old student from Quebec, Canada, videotaped himself
acting out a scene from the movie Star Wars. He forgot his tape in a media room.
The tape was stolen and uploaded on the Internet. Ghyslain rapidly became
known internationally as the Star Wars Kid. The Web site his peers created was
visited by over 15 million people. His video was cloned 106 times, and even
George Lucas, the movie's director, heard about him.
Ghyslain and fellow Canadian David Knight, whose case I have discussed in
Chapters 1 and 2, were both defamed in front of millions of people. This raises
serious legal considerations of whether existing defamation law can sufficiently
remedy or vindicate victims of cyberbullying. Second, defamed material on the
Internet can be republished quickly and easily and reproduced infinitely. This
makes it difficult to identify the original perpetrator and the extent to which
that person was responsible for the libel. Although the original video was made
by Ghyslain Reza himself, it was stolen and posted on the Internet by known
perpetrators, whom he sued. The extent to which those perpetrators could be
held responsible for the 106 clones of the video that were made from the Internet
version is questionable (Bernstein & Hanna, 2005). Given that there are few
established precedents on distribution of liability in Internet cases, this might
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have been a consideration in Reza's out of court settlement for approximately
$300,000.
Finally, as Bernstein and Hanna point out, information on the Internet travels
through several computer systems between the author and recipients (a variety of intermediaries such as bulletin board messages, social networking sites,
blogs, Web pages, e-mails), all of which can be stored on various servers. The
information can be easily and repeatedly recalled. This, they note, gives rise to
many Internet intermediary liability issues (ibid., p. 7). They quote L. B. Lidsky, who describes the difference between defamation in a physical setting and
Internet defamation in the virtual realm:
Although Internet communications may have the ephemeral qualities of gossip with
regard to accuracy, they are communicated through a medium more pervasive than
print, and for this reason they have tremendous power to harm reputation. Once a
message enters cyberspace, millions of people worldwide can gain access to it. Even if the message is posted in a discussion forum frequented by only a handful of people, any one of them can republish the message by printing it or, as is more likely by forwarding it instantly to a different discussion forum. And if the message is sufficiently provocative, it may be republished again and again. The extraordinary capacity of the Internet to replicate endlessly almost any defamatory message lends credence to the notion that 'the truth rarely catches up with a lie.' The problem for libel law, then, is how to protect reputation without squelching the potential of the Internet as a medium of public discourse.
(Lidsky, 2000, as quoted in Bernstein & Hanna, 2005, p. 7)
Bernstein and Hanna (p. 9) explain that for plaintiffs to succeed in a defamation action, they must prove
1. that the statement that the plaintiff is complaining about is "defamatory";
2. that the defamatory statement refers to the plaintiff; and
3. that the impugned statement was published, or made known, to a third
person.
Hence David Knight could argue that the statements posted on a Web site next
to his photograph labeling him a homosexual and a pedophile are defamatory,
that they refer to him as evidenced by his photograph, and that these statements
were clearly published and made known to millions of third persons -- anyone
with Internet access. Similarly, the angry teachers who have been described
as pedophiles, or as masturbating in the classroom, could potentially sue the
students who posted those comments for cyber libel.
What would their chances of success be in Canada under a defamation
suit? According to Bernstein and Hanna, Canadian courts, unlike those in
the United States, have been more willing to aggressively vindicate reputation
attacks committed over the Internet, with substantial damage awards (ibid.,
p. 8). The Ontario Court of Appeal has articulated the defamatory test as
follows:
CYBER LIBEL OR CRIMINAL HARASSMENT: WHEN DO KIDS CROSS THE LINE?
81
A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers (which tends, that is to say, to lower him [or her] in the estimation of right thinking members of society generally and in particular to cause him [or her] to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem). The statement is judged by the standard of an ordinary, right thinking member of society.
Hence the test is an objective one. . . . The standard of what constitutes a reasonable or ordinary member of the public is difficult to articulate. It should not be so low as to stifle free expression unduly nor so high as to imperil the ability to protect the integrity of a person's reputation. The impressions about the content of any broadcast, or written statement, should be assessed from the perspective of someone reasonable, that is, a person who is reasonably thoughtful and informed, rather than someone who has an overly fragile sensibility. A degree of common sense must be attributed to viewers.
( Colour Your World Corp. v. C.B.C. , 1998; emphasis added)
The objective test is whether in the eyes of a reasonably thoughtful person, rather than someone with overly fragile sensibilities, it would lower, discredit, or negatively affect the reputation of the plaintiff and expose him or
her to hatred or ridicule. When we consider Bram's case, he wrote about his
teacher masturbating in the back of the class, a fact vehemently denied by the
teacher.
Although most adults who knew the teacher involved would see the expression for what it is and not take it seriously, a significant concern of late, as
explained in Chapter 2, is that prospective employers are now surfing Facebook and other similar social networks to check the backgrounds of prospective
applicants. Moreover, postings that discuss a teacher's hygiene or a vice principal's appearance, weight, or accent can create significant embarrassment that
might cause some people to withdraw from his or her workplace altogether.
An unsuspecting school principal who may not know about online comments
about him or her could in good faith apply for a new employment position and
be denied it, because the jokes posted by his students may create a doubt in
the minds of his prospective employers that he or she really might be a sexual
pedophile. The question that arises is whether even "reasonable" employers,
especially in professions such as education, child care, social work, or health
care, will take the risk of hiring people into positions of fiduciary authority once their reputations have been marred. If there had been no cases involving teachers and school administrators who have been criminally charged and convicted of engaging in pedophilia and sexual abuse of their charges, then perhaps the
matter would be moot because no one would believe the student comments.
However, given hundreds of sexual abuse cases in Catholic boarding schools
and Native Residential Schools (Stonebanks, in press) as well as teacher misconduct and sexual abuse (Piddocke, Magsino, & Manley-Casimir, 1997), the
"ordinary-reasonable person" test may be difficult to apply.
As a number of legal academics have commented (Jafaar, 2002; MacKay &
Dickinson, 1998), teachers, like doctors, are held to a higher standard of moral
conduct and sometimes pay too heavy a price for the actions they take in their
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private lives. People work hard to earn a reputation, and losing it because of a
frivolous joke online cannot be easy. In many cases, the psychological impact
has caused teachers to have nervous breakdowns or go on stress leave. This
might explain the immense pressure on teachers' unions internationally to do
something to stop antiauthority expression on the Internet.
In peer-to-peer bullying, the impact of this form of cyberbullying is no less
devastating. Consider again the case of David Knight. In David's situation, being
labeled as a pedophile internationally might have exposed him to contempt by
most reasonable persons. He had career aspirations to become an air cadet and
then an airline pilot. His determination and support from family helped him to
achieve these career goals. However, the abuse he endured occurred early in the
2000s, before the popularity of Facebook, MySpace, and YouTube. There is no
telling whether he would have been accepted into the Canadian air cadets or
into pilot training if the military or the airline company he applied were to do a
Google search and find online profiles of David described as a sexual predator
and pedophile.
Hence, the question at hand is whether most reasonable adults would see the
Web site and be sufficiently informed or thoughtful to dismiss the statement,
assuming that it was most likely made by kids as a joke. In defining what
constitutes a "reasonable, informed, and thoughtful person," we might also
consider whether adolescents within the context of peer pressure are sufficiently
mature to interpret the statements as true or as defamatory.
Some key Canadian decisions and one Australian ruling relating to cyber
libel may shed some light on these questions. Although the cases described
here are not in the school context, they contain similarities to the students'
online postings. In the first case, Vaquero Energy Ltd. v. Weir (2004), Vaquero became aware that anonymous postings on a financial bulletin board operated by Stockhouse Media Corporation contained messages that called the president
of Vaquero insane, a moron, and equated him to Adolf Hitler, Saddam Hussein,
and Osama bin Laden. The court ruled that these statements would have a significant impact on the reputation of the company and its president and awarded
$10,000 CDN for loss of reputation, $40,000 CDN to the president and CEO,
and an additional $25,000 CDN as punitive damages to the president.
The courts made similar findings in another case, Barrick Gold Corp. v.
Lopehandia (2004; cited in Bernstein & Hanna, 2005), which began with a dispute between a large gold-producing company and a mining company as to rights over certain gold reserves in Chile. Lopehandia conducted an Internet campaign over seven months during which he posted false and defamatory material against Barrick to people interested in the gold-mining industry.
The accusations included "fraud, tax evasion, money laundering, manipulating
world gold prices, misrepresentation, obstruction of justice and crimes against
humanity." Barrick was successful in obtaining a motion for default judgment
but received only $15,000 CDN in damages because the lower court judge
believed that the comments would not be taken seriously by a reasonable reader.
The Ontario Court of Appeal overruled this decision and increased the award
CYBER LIBEL OR CRIMINAL HARASSMENT: WHEN DO KIDS CROSS THE LINE?
83
for general damages to $75,000 plus punitive damages of $50,000. Finally, the
court granted a restraining order presenting any further defamatory statements
from being made against Barrick or any of its personnel. Relying on an earlier
case, Ross v. Holly (2004) (as cited in Bernstein & Hanna, 2005),7 the Court in Barrick observed that Web site postings are far more powerful than e-mail because of their potential to reach a substantially wider audience. Moreover,
the court stated:
While it is always important to balance freedom of expression and the interests of
individuals and corporations in preserving their reputations, and while it is important not to inhibit the free exchange of information and ideas on the Internet by damages awards that are overly stifling, defendants such as Mr. Lopehandia must know that courts will not countenance the use of the Internet (or any other medium) for purposes of a defamatory campaign of the type engaged in here.
( Barrick Gold v. Lopehandia, 2004, as quoted in Bernstein & Hanna, 2005, p. 30) The Supreme Court of Canada also made clear in Hill v. Church of Scientology of Toronto (1995) that a good reputation is as important as freedom of speech, which is not an unfettered right: 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.
( Hill v. Church of Scientology of Toronto, 1995)
In a case that is more similar to the situation involving instructors or teachers
in positions of authority, the findings in an Australian case, Cullen v. White
(2003), are relevant. This case involved an educational setting at a university.
Cullen was a professor at Divine Word University. One of his former students,
William White, created a Web site disputing Cullen's doctoral credentials and
posting lewd insinuations that he was a pedophile and inviting others to write
defamatory comments. The Australian court stated:
In the present case, I am satisfied that the defamatory publications are likely to have a very harmful effect upon the plaintiff's reputation and his standing as an academic. I also accept that the plaintiff has suffered a great deal of personal distress and anguish as a result of the publications and that they have caused him very considerable annoyance. It is likely that they will make it more difficult for him to obtain appropriate employment in the future. The damages award must compensate him in respect of those matters and be sufficient to signal to the public the vindication of his reputation . . . [para. 19]
The plaintiff also seeks exemplary damages. Exemplary damages are awarded where
the defendant has been guilty of conscious, high-handed behaviour in contumelious
disregard of the plaintiff's rights: Uren v John Fairfax & Sons (supra) at 138, 154; Todd 84
CONFRONTING CYBERBULLYING
v Swan Television and Radio Broadcasters Pty Ltd [2001] WASC 334 at [139]. The objects of exemplary damages are to punish the defendant and deter others from similar conduct. They also achieve the appeasement of the victim's sense of grievance: Cotogno v Lamb (No 3) (1986) 5 NSWLR 559 at 586 [para. 20].
In my view, this is an appropriate case for an award of exemplary damages. The conduct of the defendant can be attributed only to a conscious desire on his part to cause the plaintiff the maximum amount of damage, hurt and embarrassment by what amounts to a campaign of deliberately offensive vilification [para. 21].
( Cullen v. White, 2003)
The court awarded damages of $75,000 and $25,000 (Australian) in exemplary damages.
Australian and Canadian cyberlibel decisions are promising for victims of
cyberbullying who may want to commence cyberlibel proceedings. However,
it is important to emphasize, as Bernstein and Hanna (2005) do, that defamation law, especially in cyberspace, is complex. Therefore, success would largely
depend on a range of facts and circumstances specific to each case (see also
Lidsky, 2000, for other discussions on cyber libel).
In light of the tendency by Canadian courts to value reputation over freedom of expression (based on the reasonable person test), we might ask what
our courts are saying about the responsibility of Internet service providers to
monitor and close down bulletin boards, e-mail addresses, and Web sites once
they have been notified that cyberbullying (and as part of it defamation and
libel) have occurred. This aspect of defamation law is far more complex and
better explained by defamation law experts such as Lidsky (2000) and Bernstein
and Hanna (2005). Litigation would entail the launching of a "John" or "Jane
Doe" proceeding for defamation. As part of such an action it would be necessary to obtain a court order to compel the ISP or bulletin board operator to
disclose the identification information. Furthermore, a determination would
need to be made by the courts as to whether the online defamation constituted
"broadcasting."
It is worth mentioning a Canadian defamation case, Newman et al. v. Halstead et al. (2006), that involved online libel of teachers by an adult, not a student. The case involved numerous plaintiffs (mostly school teachers) who filed a lawsuit for defamation against the adult defendant by the name of Halstead.
Halstead was a "community activist" and heavily involved in matters related
to the education system through parent organizations and school bodies.
Halstead used e-mail and Web sites to make numerous defamatory statements against the plaintiff teachers, accusing them of violence, bullying, and
other inappropriate behavior, both in and out of school. She also implied that
some of the plaintiffs were the subject of criminal investigation.
The court found her fully liable for making defamatory statements against
the plaintiffs. The court also found that no defenses to defamation were applicable to the case. The court awarded significant damages to the plaintiffs
in the amount of $626,000 CDN, including compensatory, aggravated, and
CYBER LIBEL OR CRIMINAL HARASSMENT: WHEN DO KIDS CROSS THE LINE?
85
punitive damages, in addition to injunctive relief. Halstead was prohibited from
making further defamatory comments of the type found in the plaintiff's plead---
ings, whether by the Internet or otherwise. Moreover, she was required to seek
leave from the court before publishing any further statements about the plaintiffs. Although the judgment did not use terms such as cyberbullying, it did
consider Halstead's behavior to be significantly problematic. The intent of the
cyberbullying was to lower the reputations of the teachers involved and to
lead to the removal of these teachers from their teaching positions, through
pervasive and consistent character assassinations through the use of e-mails,
Web site postings, and Internet chat sites, as well as the filing of criminal allegations against certain teachers. Some of the teachers received the brunt of
Halstead's attacks more than others. The extent of the harm was varied but
severely affected many of the teachers both personally and professionally. It
affected their ability to have a rapport with their students as well as parents,
some of whom might believe Halstead's stories. Furthermore, the public and
widely distributed nature of the comments reduced the possibility of seeking
employment elsewhere at other schools.
The American context relating to cyber libel and ISP responsibilities is interesting, and a number of cases are relevant to our discussion.
CYBER LIBEL: THE U.S. CONTEXT
In the United States, according to David A. Myers (2006), one piece of legislation that is relevant to cyberbullying is the Communications Decency Act
(CDA) (U.S. Congress, 1996). This Act grants broad immunity to ISPs. The legislation leaves no one legally accountable for cyber-targeting (which includes
cyberbullying, harassment, stalking, defamation, threats, and so on). Section
230 of this Act provides in part:
(c) Protection for "Good Samaritan" blocking and screening of offensive material.
(1) Treatment of publisher or speaker. No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided
by another information content provider.
(2) Civil Liability. No provider or user of an interactive computer service shall be held liable on account of -- (A) Any action voluntarily taken in good faith to
restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protect; or (B)
any action taken to enable or make available to information content providers
or others the technical means to restrict access to material described in paragraph (1).
(ibid.)
Myers (2006) explains that one landmark case, Zeran v. AOL (1997), is
the general precedent used by U.S. courts to rule on Internet abuse. This case
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CONFRONTING CYBERBULLYING
resulted in leaving no legal accountability for injuries caused by anonymous
postings on the Internet. It involved a series of anonymous postings on America
Online's (AOL) message board following the Oklahoma City bombings in
April 1995. The messages claimed to advertise "naughty Oklahoma T-shirts."
The captions on the T-shirts included "Visit Oklahoma . . . It's a Blast!!! " and
"Finally a Day Care Center That Keeps Kids Quiet -- Oklahoma 1995." The
individual who posted the messages identified himself as Ken Z and provided
Zeran's phone number as the person to call to order the offensive T-shirts.
Zeran received abusive telephone calls and even death threats as a result and
notified AOL, which in turn terminated the contract from which the messages
originated. However, the perpetrator continued to set up new accounts with
false names and credit cards. Zeran finally sued AOL, claiming negligence. The
court ruled that Section 230 of the CDA provided absolute immunity to AOL
regardless of its awareness of the defamatory material.
The Zeran ruling, Myers notes (2006), maintains the status of Internet
providers as "distributors" rather than "publishers." Publishers (e.g., book
publishers) are liable for defamation by third parties using their services, especially if they are made aware of them and fail to act to prevent the behavior.
The Zeran decision followed a case in which an Internet provider was elevated
to the status of "publisher," Stratton Oakmont v. Prodigy Services Co. (1995).
Prodigy had decided to regulate the content of its bulletin boards (in part, to
market itself as a "family-orientated" computer service). By taking on an editorial role, Prodigy opened itself up to greater liability than computer networks
that do not edit content. Thus service providers argued that if they agree to
monitor and edit online content, they in fact subject themselves to greater liability. This is why most Internet providers ignore reports of abuse. Most are
confident that they will not be held liable subsequent to Zeran. The irony of
this, as Myers (2006) points out, is that the title of S.230 reads "Protection for
'Good Samaritan' blocking and screening of offensive material." The objective of the CDA was to protect proactive online service providers and preserve
competition between ISPs on the Internet.
Myers makes the point that if David Knight were bringing his lawsuit in the
United States, S.230 might make it too difficult for him to argue that the Internet provider was aware of and therefore responsible for the Web site with his
picture, labeling him as a homosexual pedophile and drug pusher. Nonetheless,
he believes "the winds of change are stirring" for S.230 immunity. At the state
level, he cites common law case ( Bryson v. News America Publ'ns, Inc., 1996).
The case involved a fictional story titled "Bryson" written by Lucy Logsdon.
Lucy wrote about being bullied at school by Bryson, whom she referred to as a
"slut." The real Bryson read the story and remembered living in the same town
as Lucy Lodgson. She sued News America for libel and won. The court stated
that even though the story was labeled as fictional, it portrayed realistic characters, responding in a realistic manner to realistic events, and that a reasonable
reader might logically conclude that the author of the story had drawn on her
teenage experiences to write it. Myers suggests that if the courts rely on this case, CYBER LIBEL OR CRIMINAL HARASSMENT: WHEN DO KIDS CROSS THE LINE?
87
David Knight's lawyers might well argue that the Web site with David's picture
(labeling him as a pedophile) could reasonably be interpreted as true by those
who saw it, resulting in negligence and liability against the Internet provider.
Furthermore, in another case ( Doe v. GTE Corp., 2003) involving the secret
filming of athletes showering in a change room that was posted and sold on a
Web site, the Seventh Circuit Court of Appeals upheld S.230 immunity relying
on Zeran, in favor of GTE corporation. However, Judge Easterbrook questioned the reasoning in Zeran, noting that S.230 is supposed to be the "Good
Samaritan," blocking and screening offensive material, but, in fact, by eliminating liability for ISPs, it ends up defending abusers and defeating legitimate
claims by victims of tortuous abuse on the Internet.
Some American states have created criminal libel statutes. In a 2002 Utah
case, I. M. L. v. State, a high school student was charged with criminal libel for creating an Internet Web site on which he displayed disparaging comments about his teachers, classmates, and principal. He applied for dismissal of the
charges, challenging the criminal libel statute on constitutional grounds. The
Utah Supreme Court held that Utah's criminal libel statute was overbroad and
unconstitutional. The statute reads as follows:
A person is guilty of libel if he intentionally and with a malicious intent to injure another publishes or procures to be published any libel.
( I. M. L. v. State, 2002)
The court held that the statute does not comport with the standard set by the
Times v. Sullivan (1964), which requires that when the defamatory statements involve public officials, the plaintiff must show that the defendant made the statements with "actual malice" as opposed to "mere malice." Actual malice is
defined as making a statement "with knowledge that [the statement] was false
or with reckless disregard of whether it was false or not." Common law malice
requires only a showing of ill will or spite.
This decision illustrates the support that the courts in the United States give to
freedom of expression. The sixteen-year-old student in this case had purported
to describe the sexual history of students and teachers at Milford High school.
He referred to his principal as a "town drunk" and accused him of sleeping
with the secretary of the high school. Another page listed various faculty at
the school and made arguably or potentially derogatory comments about most
of them, stating that one teacher is a "possible homosexual leading a double
life" (para. 2) and that another is "possibly addicted to speed or some other
narcotic" (para. 2). He dedicated one page to defending a female student who
had apparently been slandered on another Web site. The student had left a piece
of paper containing the Internet address of his site in the high school computer
lab so that someone would find the site. The judge noted that although the
student admitted to creating the site and to hating the principal, the Web site
did not appear to be a precursor to school violence. He held that the school
had not raised a sufficient claim.
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CONFRONTING CYBERBULLYING
I have managed to locate one U.S. decision that might provide guidance
relating to the claim of "privacy" by students who post libelous statement
online, claiming they were only meant for certain individuals. The case of
Wagner v. Miskin (2003) involved a college professor, John Wagner, and his
student, Glenda Miskin. In the fall of 1998, Miskin enrolled in a University of
North Dakota (UND) physics class and began to harass Wagner through sexually explicit e-mail messages. She also conveyed false statements about him
at a UND committee hearing. Wagner filed an action against her alleging libel,
slander, intentional infliction of emotional distress, and intentional interference with a business relationship. The District Court, Grand Forks County, entered
a judgment on a jury verdict, awarding Wagner $3 million U.S. in damages. The
student appealed to the Supreme Court claiming that the District Court had no
jurisdiction to hear her claim and that the statements she made at the Committee meeting were not protected by privilege. The court noted that although she
disputed his claim for damages of libel at the Committee meeting, he had made
no such claim. The court's interpretation might be relevant to claims of "privilege" for statements made on Facebook, for example, based on its description
of privileged statements:
A privileged statement . . . is not privileged for all subsequent publications by virtue of initially being spoken in a privileged proceeding. Miskin seems to assert that once a statement is made in a setting in which it may be privileged, she is free to repeat it at will in other situations. She cites no relevant authority to support her position nor have we found such authority. Even an "absolute" privilege does not permit an individual to categorically republish possibly defamatory statements without consequence Cf. World Wrestling Fedn. Entm't Inc. v. Bozell, 142, F. Supp 2 d 514, 534 (S.D. N.Y. 2001 Not in Endnote). (para. 14).
( Wagner v. Miskin, 2003)
Although this case does not appear to carry significant clout as Wagner acted
for himself, it provides insight into the fact that courts may take this route in
holding students accountable for libelous online statements that can be repeated
and spread publicly.
NEGLIGENCE, SUPERVISION, AND MALPRACTICE
Moving from whether students can be held responsible for tort law by engaging
in cyber libel, there is a second aspect of tort law that applies. This involves the potential for schools to be held liable in an actionable claim for negligence if
they do not act quickly to protect student victims of peer-to-peer cyberbullying.
Moreover, it is also worth determining whether teachers, as government agents,
can be held legally liable if they fail to educate adolescents to engage in socially responsible discourse.
In "real" space, victims who are injured while at school can bring claims for
compensation against teachers and schools for injuries at school or on field trips
CYBER LIBEL OR CRIMINAL HARASSMENT: WHEN DO KIDS CROSS THE LINE?
89
(MacKay & Dickinson, 1998). British and North American law historically
places on educators a "duty of care in loco parentis." This means that educators have a duty to care for their students as if they were standing in place of their parents. Not only that, an 1893 case, Williams v. Eady, established that teachers must act as "careful and prudent parents" when it comes to protecting students.
The key question here is whether this duty of care extends to the responsibility of teachers to educate students to be respectful to each other. The "careful parent" legal doctrine does not address teachers' professional responsibilities as educators. Although claims for educational malpractice have been made, American courts have categorically denied that schools can be held liable for failing to educate. This implies that teachers cannot be held legally liable when students engage in covert forms of verbal and psychological bullying. The courts
maintain that education is a matter of public policy and does not fall into the
professional realm as do medical and legal malpractice and that teachers are
not considered to be "professionals" in the same sense that lawyers and doctors
are. This might be because teachers are generally autonomous in carrying out
their teaching duties. As long as they stay within curriculum guidelines, they
have the discretion to select educational resources that meet those guidelines.
Jafaar (2002), however, advances a strong argument that public policy is the
very aspect of educational malpractice that can work to support victims' claims
that are brought against schools. Her arguments are important for victims of
bullying. She believes the courts fail to recognize that public education has
evolved to develop professional standards of conduct that are no longer confusing and unambiguous. Professional expectations in the public school context
are now standardized and easily recognized and therefore should be enforceable
at law as a matter of sound public policy.
Jafaar's arguments build on similar positions advanced by Hines (1991) and
Parker (1993). She argues that over the past twenty years, as the public school
system grew to incorporate the needs of society, the teaching profession has
become more standardized. She asserts that even though legislation on schooling might not provide clear standards for teachers as professionals, there are
other important sources of public policy that clearly define and establish the professional standards expected from teachers and other education professionals.
For example, although the Ontario Education Act provides ambiguous wording
with respect to the duty of teachers regarding instruction, "to teach diligently
and faithfully the classes or subjects assigned to the teacher by the principal"
(s. 264 (1) (a)), in November 1999, the Ontario College of Teachers (OCT)
approved and published the Standards of Practice for the Teaching Profession
that clarify the scope of this legislated duty. Jafaar (2002) further explains that the fact that the OCT and similar bodies such as the British Columbia College
of Teachers have established standards for teacher certification confirms that
public school teaching is now a profession, with established standards of professional practice. She argues that the policy directives of teacher certification
bodies undermine, if not outright nullify, the argument by courts that no duty
of care exists due to the lack of clearly defined standards.
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CONFRONTING CYBERBULLYING
If Jafaar's reasoning is applied to cyberbullying, a claim might include, for
example, a teacher's failure to adhere to British Columbia Performance Standards Guidelines on Social Responsibility (2000). Under these standards, teachers must monitor the social development of students at different grade levels.
The broader objectives of teaching social responsibility are described as follows:
Human and Social Development is one of the goals of the BC school system. This
broad goal further specifies that students are expected "to develop a sense of social responsibility, and a tolerance and respect for the ideas and beliefs of others."
(British Columbia Ministry of Education, 1997; emphasis added)
The British Columbia standards provide a framework for monitoring and
evaluating a variety of school and classroom programs intended to promote,
among other things, student responsibility. Although the standards are discretionary guidelines, they might be useful to courts in determining educational
malpractice. However, a better alternative might be to mandate that public
school educators receive professional development education regarding bullying in schools as well as knowledge of the relevant legal standards.
In an earlier U.S. case, Hunter v. Board of Education of Montgomery County
(1982), the dissenting opinion of Judge Davidson provides an anomaly in terms
of acknowledging an actionable tort of educational malpractice. In this case,
the sixteen-year-old plaintiff claimed that he had negligently been required to
repeat first grade and this had social consequences resulting in bullying. It
led to embarrassment, learning deficiencies, and "loss of ego strength" (ibid.,
p. 582). Justice Davidson stated his opinion as follows:
In my view, public educators are professionals. They have special training and state certification is a prerequisite to their employment. They hold themselves out as possess-ing certain skills and knowledge not shared by non-educators. As a result, people who utilize their services have a right to expect them to use that skill and knowledge with some minimum degree of competence.
(ibid., p. 589)
Judge Davidson argued that he would have articulated the applicable pedagogical standard as one "based upon customary conduct" (Hines, 1991, p. 158),
the standard applied in medical malpractice claims, and rejected the commonly
held judicial assumption that acceptance of such a claim would result in a flood
of litigation:
In recognizing a cause of action for educational malpractice, this Court would do nothing more than what courts have traditionally done from time immemorial -- namely provide a remedy to a person harmed by the negligent act of another. Our children deserve no less.
( Hunter v. Board of Education of Montgomery County, 1982, p. 590)
CYBER LIBEL OR CRIMINAL HARASSMENT: WHEN DO KIDS CROSS THE LINE?
91
It is important to consider that if students are not receiving reciprocal respect
from teachers, if they sense that their teachers are not engaged in promoting
their well-being and education, if they are tacitly condoning peer-to-peer bullying by turning a blind eye, then all of these might in effect contribute to the
antiauthority forms of expression that emerge online. Because most students
are not well equipped to raise formal protests regarding a lack of attention to
their overall education, the antiauthority forms of cyberbullying could, in fact,
represent expressions of the lack of attention to students' social development.
For example, if particular teachers neglect to provide guidance on civil and
social responsibility, if they model forms of bullying themselves and know that
the courts will not hold them responsible for educational malpractice in the
same way that doctors are held responsible for medical malpractice, they are
bound to expend less effort to develop social responsibility in young people.
Hence as educational professionals, it seems ironic that teachers who might in
fact ignore a central part of their mandate are not held accountable to it, but
in turn call loudly for accountability by the very students they have failed to
educate in social responsibility. This is where I argue strongly in support of
Jafaar (2002) that teachers ought to be held accountable to certain standards
to educate for social responsibility in schools. I believe if this were the case, we would witness a lot less of the negative online postings by students about their
teachers. It boils down to issues of mutual trust and respect, which my own
research suggests are almost absent in many schools.
I believe it is essential to pay more attention to the fact that negligence to
educate children for social responsibility can result in egregious psychological
harm. A Canadian decision, Gould v. Regina (East) School Division, No. 77
(1997), left the door slightly ajar to the possibility that teachers might be held
liable in cases of egregious (but unspecified) psychological harm to students. In
this case, seven-year-old Jacklynne and her parents brought an action against
the Board of Education and its employee, teacher Karen Zarowny. Their claim
included a claim in negligence and breach of the Education Act, as well as
educational malpractice. The plaintiffs alleged that Jacklynne was subjected to
"unsatisfactory, inappropriate and objectionable behaviour" (para. 8) by Ms.
Zarowny; that she failed to perform the duties of a teacher in accordance with
the Education Act; and that she "bullied" the infant plaintiff while she was in
her Grade 1 class.
The suit alleged that Ms. Zarowny spoke too loudly in class; bullied,
ridiculed, and intimidated her pupils; failed to "fulfill the learning needs of the infant plaintiff;" and modeled intolerance to her students (para. 45). The judge
stated that, given the right set of circumstances, conduct that was "sufficiently
egregious and offensive to community standards of acceptable fair play" (ibid.,
p. 18) might support a cause of action for educational malpractice. Although
this suggests that egregious forms of bullying and particularly cyberbullying
might indeed qualify, the court did not clarify what circumstances and behaviors might qualify as "sufficiently egregious and offensive." In considering the
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CONFRONTING CYBERBULLYING
allegation of bullying by the teacher, Judge Matheson considered how courts
should deal with such ambiguity:
But what standard will the court utilize to judge the appropriateness of the complained of activities? When does speaking in a sufficiently loud enough manner to be heard by all students become unacceptably loud? What one person may perceive as in inappropriately loud and intimidating voice, another person may envision as necessary as an attention getter. And while one student may consider the curriculum as inadequate for his or her needs, the majority of students may reach an opposite conclusion.
It is surely not the function of the courts to establish standards of conduct for teachers in their classrooms, and to supervise the maintenance of such standards. Only if the conduct is sufficiently egregious and offensive to community standards of acceptable fair play should the courts even consider entertaining any type of claim in the nature of educational malpractice.
(ibid., p. 18; emphasis added)
Incidentally, this opinion highlights the same difficulties related to recognizing the differences between innocent teasing by peers and bullying. Nonetheless, it would be interesting to determine whether a court would find verbal and
cyberbullying as "sufficiently egregious and offensive" and serious enough to
result in psychological harm whether it is instigated by peers against peers, or
even if it involves "private" discussions containing libelous comments about
teachers. Given the devastating psychological impact on teachers and students,
it is plausible that such expression does constitute "egregious psychological
harm."
Although peer-to-peer cyberbullying with its anonymous and nebulous
nature ought to be considered offensive to most "community standards of
acceptable fair play," it is the antiauthority online postings that have resulted
in the most attention from teachers and their unions and from school and government officials. Thus it is in order to conclude that the latter form is deemed
to be far more offensive to "community standards of acceptable fair play." The
law is slow to change, especially when judges are well aware of the floodgate
of litigation that might be unleashed if Internet providers are held liable.
TORT LAW, SUPERVISION, AND RISK
The law of torts and negligence has another area that is applicable to the issue
of cyberbullying. I have dealt with this issue in great detail elsewhere (Shariff, 2003); however, I briefly highlight some of the key legal standards that are
applicable to cyberbullying.
The duty of care obligation on teachers and principals where they are
required to act as "careful and prudent parents" was developed more than
100 years ago, when schools were smaller and mainly residential schools. The
difficulty of applying it, especially in an era of digital literacies, is less practical.
CYBER LIBEL OR CRIMINAL HARASSMENT: WHEN DO KIDS CROSS THE LINE?
93
Nonetheless, failure to supervise students properly can result in an actionable
tort of negligence (unintentional tort). The onus is on the student who brings
the claim, for example, as a victim of bullying or cyberbullying, to establish
four criteria: (1) that there was a duty of care; (2) that the plaintiff experienced a tangible injury (psychological injury is harder to establish than physical
injury); (3) that the injury was foreseeable by the supervisor and could have
been prevented; and (4) that the injury was caused by the actions or omissions
of the supervisor. Hence, in a case of peer-to-peer cyberbullying, a victim might
report the bullying to the school several times, and the teacher may waive it
off as nothing serious or tell the student the problem is a parental responsibility.
If the student attempts to commit suicide and fails and then brings an action
for negligence in supervision, it can be argued that there was sufficient tangible psychological harm to cause the student to want to commit suicide; that
repeated cyberbullying was foreseeable; and that it continued because of the
failure (omission) by the teacher to prevent it. There are no legal precedents
on school negligence in supervision cases relating to cyberspace to date. David
Knight's case would have been exemplary had it gone ahead because it would
have required the court to consider defamatory Web sites and their role in tort
law, both from a supervision and a cyberlibel perspective. However, his claim
is now on the way to being settled, so we will not know unless another action
is brought before the courts.
Finally, relating to the antiauthority Web sites, it is possible that under tort
law a student could be assessed for liability for negligence, even if he claims
that he did not intend to harm the teacher with his demeaning words. If the
teacher can establish that there was sufficient embarrassment and psychological
harm that might cause mental illness or prevent her from finding employment,
and if the teacher can establish that the harm from the student expression was
"foreseeable" and that the actions or expression of the student "caused" her
to become mentally ill, then there is the possibility of liability under tort law.
In addition, not realizing that the Internet is public space may not hold out as
an excuse.
Although it would be necessary to defer to the expertise of tort law theorists
and practitioners, I venture to suggest, that the tort law doctrine of volenti non fit jura might come to play. It could be a stretch, but it is worth mentioning.
This doctrine works on the principle that if an action carries a certain level of
risk and if that risk is known, but if the individual nonetheless undertakes the
action, he or she can be held partially liable for any injury resulting from their
act. In the case of cyberbullying, the court might hold that the student knew full well that the Internet is a public space and that he or she ought to be held liable for his or her actions (take for example, cyber libel for defamation of teachers online). It cannot be said for certain whether this doctrine would be applied;
hence, at this point it is merely conjecture. Whether the courts continue to rely
on century-old principles of tort law to bear in an information age is yet to be
seen.
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94
CYBER LIBEL OR CRIMINAL HARASSMENT: WHEN DO KIDS CROSS THE LINE?
95
Table 3.1 summarizes the legal considerations that have been discussed in
this chapter. As the cases and Table 3.1 highlighted in this chapter suggest,
students are adamant regarding their rights to free online expression, taking
the position that their statements are not meant to be libelous. How successful
have they been in their claims for constitutional protection of free expression?
Chapter 4 highlights a range of constitutional cases that clarify standards at
established and emerging law as to the limits of on-and off-campus speech and
the extent of school responsibilities to reduce it.
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McGill University, Montreal.
Student Free Expression: Do the Schoolhouse Gates
Extend To Cyberspace?
[W]hile children assuredly do not shed their constitutional rights at the schoolhouse gate, the nature of those rights is what is appropriate for children in school.
Morse v. Frederick (2007), p. 15
Disliking or being upset by the content of a student's speech is not an acceptable
justification for limiting student speech. . . . Speech within the school that substantially interferes with school discipline may be limited. Individual student speech which is unpopular but does not substantially interfere with school discipline is
entitled to protection.
Beussink v. Woodland R-IV School District (1988)
Chapter 3 engaged in a discussion about cultural differences in the way Asian
countries are beginning to address students' cyber misconduct compared with
countries in the West. I provided legal definitions for defamation and cyber libel
and discussed North American and Australian jurisprudence on cyber libel in
the context of a number of controversial case examples. Throughout I noted that
despite the very public exposure such expressions receive, students maintain
that schools have no right to intervene and argue that when they do, school
authorities are intervening in private conversations among friends. Moreover,
when students have been suspended for their online comments about teachers,
some have protested and challenged their schools in court for infringing rights
to freedom of expression.
In this chapter, I examine some of those challenges, to highlight what the
courts have said about students' rights to free speech, limits on that speech, and
limits on the rights and responsibilities of schools to intervene. The court rulings relating to student speech on-and off-campus clarify reasonable guidelines
on its limits and the extent of school responsibilities to intervene. However,
judicial decisions have been fairly mixed as they relate to the online content of 99
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CONFRONTING CYBERBULLYING
such speech, particularly when it comes to assessing the impact on the targets
of that speech. Moreover, it will be more useful to engage in an analysis of
court approaches to the free expression claims in this chapter if we have some
grounding and appreciation of the contemporary contexts in which such speech
takes place. For example, one of the key points of contention is supervision.
Students already feel they are oversupervised. As with the boys on Golding's
island in Lord of the Flies, they have finally found an infinite space that is not constantly inhabited by adults. They do not want "Big Brother" watching them at all times while they communicate with friends online. Many parents and civil
libertarians agree. They do not believe it is the school's right or responsibility
to punish children for engaging in cyber misconduct on home computers. For
example, as Bram Koch's father stated on the CBC Radio interview on The
Current, he was offended when the school basically "walked into his home and told his son what he couldn't do at home" (Findlay, 2007).
Accordingly, I begin this chapter by addressing the issue of adult supervision of kids' spaces and how this causes them to respond or react. Second, to
understand both sides of the dispute (free expression versus control of speech),
we need to examine more closely the mindsets that adults bring to their understanding of digital literacies and online communication, compared with students' mindsets. Therefore, I present theoretical approaches that help to put
the current debate into perspective. Third, before engaging in discussion and
analysis of the freedom of expression cases, I briefly highlight judicial decisions that consider the impact of online expression. Not all of those decisions
were made within a constitutional framework; nonetheless, they provide some
indication of what courts have said about how seriously cyber expression that
appears libelous or threatening ought to be taken. This is particularly important
in relation to its potential impact in the "physical" or offline" world.
SUPERVISION: DOES SCHOOL AUTHORITY APPLY IN CYBERSPACE?
Human beings, like animals, have always been territorial, and as Darwin (2003)
informed us, it is all about survival of the fittest. When it comes to the debate
involving online student expression that threatens the survival of teacher and
school authority as we have known it, this debate becomes very much about
survival of the fittest. What makes us different from other animal species is
that most animals nurture, protect, and teach their young survival skills for
short periods of time and then let them roam independently to learn and fend
for themselves. Although in the animal world many dangers lurk in unknown
spaces, there is almost an instinctive element of trust by the adults that they have done their best to prepare their young for these dangers. How their offspring use
learned survival skills to navigate the dangers is left up to them -- unsupervised.
On the other hand, humans teach children how to eat, clean themselves,
and communicate; we protect and nurture them until they are old enough
to go to school. Once they are at school, we suddenly place more emphasis
STUDENT FREE EXPRESSION
101
on supervision, discipline, authority, subordination, punishment, and consequences, with less attention to social survival skills they will need in the contemporary world. High schools rarely teach students how to sustain long-term
partnerships with a spouse, nor how to parent, manage finances, budget, food
shop, or run a home, although most home economics classes make a superficial
effort to do so. Few social studies classes teach students how to network with
people who could mentor them in their careers, or even how to use a credit card,
avoid getting in debt, or stay healthy (although admittedly schools are increasingly focusing on improved wellness). Nonetheless, we have generally shifted
the focus away from preparing our young for life to controlling their behavior,
making them conform to rules and laws designed for the benefit of adults, such
as zero-tolerance policies and legislation. If those rules do not work, we bring in the police and criminal justice system to keep them in their proper place (Apple,
1990; DiGiulio, 2001; Giroux, 2003; Kincheloe, 2005; McLaren, 1991).
As one of my graduate students, Andrew Churchill, aptly observes, we supervise children's play spaces from a young age. Andrew cites soccer and baseball
leagues as examples that are set up to formalize young people's games from the
age of four and five. How often have we heard about overzealous and competitive coaches and parents pressuring children to perform at soccer or hockey
games, to the point of abuse and breakdown from stress? Moreover, in the last
two decades or so, fear of pedophiles and murderers kidnapping children while
they play outside has resulted in around-the-clock supervision, even though
most adult baby boomers remember roaming free to play for hours without
adult supervision.
Exploring the Cyber Forest
Cyberspace to kids is like a forest that awaits discovery for a formerly caged
animal. There is much to explore, learn, navigate -- an infinite world of wonders
but also many dangers. I use this exaggerated metaphor intentionally to argue
that technologies have provided youngsters with the spaces they need to explore
and learn about issues that are relevant and have meaning to them. Cyberspace
provides an arena that gives the impression of being largely unsupervised by
adults. In cyberspace, young people can roam free and socialize with peers in
a world where parents and teachers are not welcome. So valued has this space
become for young people that even those who are victims of cyberbullying are
reluctant to report it for fear that the technology (cell phones or computers)
will be withdrawn or that the adults will not understand what is taking place
because some of them "do not even own a cell phone" (Campbell, 2005).1
Yet as danah boyd (Jenkins & boyd, 2006) reminds us, because of mobile
phones, college students report greater ongoing communication with their parents than in previous generations. She cites Misa Matsuda as arguing that
networked technologies allow youth to maintain "full-time intimate communities." Hence new media are allowing young people to become more deeply
connected to their peers and also to their family members. This provides powerful open channels for communication. These are positive factors that are rarely
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CONFRONTING CYBERBULLYING
communicated in news headlines or referred to when we hear how the "Web
ensnares" teens (Schmidt, 2006).
Jenkins (Jenkins & boyd, 2006) suggests that most parents and supervisors
understand their children's experiences in the context of their memories of
their own early years. For the baby-boom generation, those defining experiences
involved playing in backyards and vacant lots within suburban neighborhoods,
socializing with their friends at the local teen hangout, and participating within
a social realm that was constrained by the people who went to one's local
school. All of that, he says, is changing. His colleague, danah boyd (ibid.),
agrees. She notes that social networking tools such as MySpace and Facebook
play a key role in youth lives because they service as "digital publics." This is
best explained in her own words:
These sites play a key role in youth culture because they give youth a space to hang out amongst friends and peers, share cultural artifacts (like links to funny websites, comments about TV shows) and work out an image of how they see themselves. They also serve as digital publics, substituting for the types of publics that most adults took for granted growing up, but are now inaccessible for many young people -- neighborhood basketball courts, malls, parks, etc. Youth are trying to map out a public youth territory for themselves, removed from adult culture. They are doing so online because their mobility and control over physical space is heavily curtailed and monitored.
(ibid.)
In support of these comments, Jenkins explains that much of the activity that
our generation enjoyed as kids is today occurring online:
What teens are doing online is no better and no worse than what previous generations of teens did when their parents weren't looking. The difference is that as these activities are being digitized, they are also being brought into public view. Video games bring the fantasy lives of young boys into the family room and parents are shocked by what they are seeing. Social networks give adults a way to access their teens' social and romantic lives and they are startled by their desire to break free from restraints or act older than their age. Parents [and teachers] are experiencing this as a loss of control but in fact, adults have greater control over these aspects of their children's live than ever before.
(ibid.)
Jenkins goes on to observe that digital technologies simply bring to the surface teenage behaviors that have always been present. These are recorded more
permanently online:
Indeed, one of the biggest risks of these digital technologies is not the ways that they allow teens to escape adult control, but rather the permanent traces left behind of their transgressive conduct. Teens used to worry about what teachers or administrators might put in their permanent records since this would impact how they were treated in STUDENT FREE EXPRESSION
103
the future. Yet, we are increasingly discovering that everything we do online becomes part of our public and permanent record, easily recoverable by anyone who knows
how to Google, and that there is no longer any statute of limitations on our youthful indiscretions.
(ibid.)
To be more open to the ways in which students are using the Internet and
engaging in digital literacies, it is also important to be aware of the mindsets
through which adults tend to approach those tools, compared with the mindsets that young people adopt. Consider what some of the other experts who
study technologies and digital literacies have to say on the issue.
Although most adults use e-mail, Internet, and cell phones, they do not rely
on them as tools of social communication to the extent that young people do.
Such tools are an integral aspect of virtual (and physical) social networks that
have emerged among adolescents and youth with the advent of new technologies. Mediums such as Facebook, MySpace, MSN, SMS, blogs, text messaging,
and bulletin boards have become essentials within the lived realities of young
people -- much more so than those of adults. Many adults continue to perceive
technology as a means to an end -- a medium, whereas for young people, the medium is an integral aspect of the message -- a phenomenon that Marshall McLuhan (1964) introduced some years ago. This is why, as Time magazine
(Chu, 2005) reported recently, teenagers use computers, Blackberries, and cell
phones to communicate, even when their peers or siblings are in the same or
neighboring rooms.
Technology has become another normative framework and tool on which
young people rely to communicate with one another. However, virtual spaces
are extremely different from physical ones, and as such they generate a new
set of social conventions among youth. Yet from preadolescents to university
students, young people seem to master the technological tools at their disposal with little or no trouble, whereas adults are generally more technologically challenged and frequently turn to young people for guidance. Moreover,
cyberspace allows for participation by an infinite audience (on public Web sites,
for instance). The world has opened up to children and youth in vastly different
ways than it did for their parents and teachers.
ADULT MINDSETS AND THE DIGITAL DISCONNECT
Although more adults are venturing to join social networking groups, I believe
their motivations are to understand the tools better rather than to enjoy their
benefits. Parents and teachers, in general, rarely use MSN, MySpace, or Facebook. This increases the disconnectedness of adults and allows them a superficial understanding of the realm of possibilities. It also limits their appreciation of the potential for knowledge transfer in cyberspace.
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CONFRONTING CYBERBULLYING
table 4.1. Some Dimensions of Variation between the MindSets
MINDSET 1
MINDSET 2
The world is much the same as before,
The world is very different from before,
only now it is more technologized or
largely as a result of the emergence and
technologized in more sophisticated
uptake of digital electronic
ways:
internetworked technologies:
r The world is appropriately
r The world cannot adequately be
interpreted, understood, and
interpreted, understood, and
responded to in broadly
responded to in physical-industrial
physical-industrial terms.
terms.
r Value is a function of scarcity.
r Value is a function of dispersion.
r Tools are for producing.
r Tools are for mediating and relating.
r The focus is on individual intelligence.
r The focus is on collective intelligence.
r Expertise and authority are "located"
r Expertise and authority are distributed
in individuals and institutions.
and collective (hybrid experts).
r Space is seen as enclosed and
r Space is seen as open, continuous, and
purpose-specific.
fluid.
r Social relations are viewed in the
r Social relations are viewed in the
context of "bookspace" -- a stable
context of emerging "digital media
"textual order."
space" -- texts in change.
Lankshear and Knobel (2006) have developed a "mindset" paradigm that
illustrates the differences in the mindsets of most adults and children as they
conceptualize, use, and approach technology. Table 4.1 features examples from their comparison of the two paradigms (p. 38).
The mindset paradigm describes the differences in the way that adults (with
some exceptions) compared with most young people have adapted to new technologies depending on their worldview and mindset. Most adults have mastered e-mail and computer technologies, but only superficially. They tend to
conceptualize them from Mindset 1 and attempt to accommodate "it" -- what
they perceive as "the" new technology and "digital literacy" -- to their physical
world.
Lankshear and Knobel (2006) argue that it is important to understand and
approach new technologies and digital literacies as emerging digital media
spaces, texts in change (as opposed to the textual order of book space), and a
world that focuses on collective intelligences rather than individual intelligence.
Cyberspace opens up a world that provides the media and tools to mediate and
relate knowledge rather than tools that simply produce knowledge that can be
submerged in orthodoxy and conformity.
Young people have adapted quickly to the cyberworld -- a world that cannot
be interpreted or responded to in "physical-industrial" (Lankshear & Knobel,
2006) terms but one that enables and accepts collaborative and interactive participation. We have always talked in education about giving students a voice,
STUDENT FREE EXPRESSION
105
engaging them in their learning. Yet now that we have the capabilities (that
indeed students are opting to use), the adults in their lives -- parents, teachers, school administrators, and researchers -- feel excluded. We are often held back because of the mindset we adopt. This in turn contributes to sense of disempowerment, and for teachers who value their status and authority over that of
students, it becomes a crisis.
Richard Lanham (1995) suggests that under contemporary conditions the
notion of "literacy" has extended its semantic meaning from that of being able
to read and write to the ability to understand information however presented
(as cited in Lankshear & Knobel, 2006, p. 2). This means that digitally literate people must be capable of moving from one medium to another -- from text to
image to sound and back with fluidity. Lankshear and Knobel explain that the
value of digital literac ies lies in their ability to help us adapt the message to a range of mediums that can be used for different audiences.
In the context of schools, it becomes clear that the tendency of school boards
is to adopt Mindset 1. The immediate reaction is to keep children safe by
installing firewalls and block filters as though they were in the physical world
(similar to the kinds of roadblocks, fences, and restraints that would work in
real space) or ban the use of cell phones, iPods, and social communications networks in the school and sometimes in the home as punishment. The following
comments by the school superintendent in the Birchmount School case evidences the mindset toward "technology" as something that can be controlled
as one entity: "[B]ullying using a new information technology . . . gives kids way more power than they've had" (school superintendent Anne Kerr as quoted in Girard & Nguyen, 2007).
The Limitations of MindSet 1
Young people adopt Mindset 2 and understand the value of digital literac ies
as enabling tools -- for mediating and relating. Ultimately, students can easily hack through firewalls -- and may seek out the content that schools and parents attempt to censor because of efforts to prevent access. Consider this
Australian example. The Herald Sun in Melbourne (Higginbottom & Packham, 2007) reports that sixteen-year-old Tom Wood, a Melbourne schoolboy,
broke through the federal government's new $84 million Internet porn filter
within 30 minutes. Apparently, it took him just over half an hour to bypass
the government's filter. Tom also showed reporters from the Herald Sun how to deactivate the filter with a few clicks of his mouse. The report says that the teenager ensured that the software's toolbar icon was not deleted. This left his
parents under the impression the filter was still working. Tom is a former victim of cyberbullying and feared that other computer-proficient children would
bypass the government filter and put it on the Internet for their friends to use.
According to the report, the boy had already spoken to Australian Communications Minister Helen Coonan about cyber safety during a forum in May
2007, saying it was a "horrible waste of money." He had suggested the federal
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government could have developed a better Australian-made filter that would
be cheaper than the overseas blocking device that cost so much.
In response to the Herald Sun's inquiries, the Australian government added
an Australian-designed filter, Integard, to the Web site the following Friday.
Tom promptly proceeded to break through the new Australian filter within
40 minutes. The government's response to that feat was that they had anticipated children would find ways to get around the NetAlert filters. To prevent
that from happening too often, they had contracted suppliers to provide continuing updates. After spending so much taxpayers' money on these filters, the
minister noted: "Unfortunately, no single measure can protect children from
online harm and . . . traditional parenting skills have never been more important." The filters are designed to stop access to sites on a national blacklist, bar use of chat rooms, and can be tailored by parents to stop access to sites.
Tom stressed that the filters were missing the mark by a long way regardless
of how easy they were to break. His words illustrate how little credit we give to
youngsters who can see beyond the immediate need to control online expression
to the larger and deeper issues that ought to be addressed.
Filters aren't addressing the bigger issues anyway. . . . Cyber bullying, educating children on how to protect themselves and their privacy are the first problems I'd fix. . . . They really need to develop a youth-involved forum to discuss some of these problems and ideas for fixing them.
(Higginbottom & Packham, 2007; emphasis added)
No expert on cyberbullying or technology could have put this more succinctly
and so insightfully. It is essential that we involve and educate children, but it
appears that there is a need to educate ourselves first.
It turns out that the NetAlert scheme cost AU $189 million, which includes
$84.4 million for the National Filter Scheme, plus funding for online policing,
a help line, and education programs. The Australian government will also offer
the option of filtering by Internet service providers. The report states that under its filter program, households can download the filter from or have it sent out
to them. Tom's words and activism in showing the lack of thought and futility
that goes into many government policy responses that are grounded in Mindset 1 is crucial to an improved understanding and response to cyberbullying
and misconduct. As we move forward in this text, I present support for Tom's
position to explain why it is essential to engage young people in developing collaborative and educational responses to cyberbullying that absolutely cannot
be resolved simply through the purchase of expensive blocks and filters. Nor
will they be resolved through the censorship of technologies that are too far
advanced to be controlled in traditional ways.
When Mindset 2 informs the use of digital literacies, as Lankshear and
Knobel observe, expertise and authority are no longer top down but involve
"collective, hybrid experts" (2006, p. 38). Thus, as they explain, literacy (the
ability to read and write), have taken on completely new meanings, such as
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"the ability to understand information however presented" (ibid., p. 2). These
authors are concerned, however, that once people in positions of authority think
they understand digital literac y and apply the "it" perspective to institutional contexts of learning, they attempt to control, standardize, and manipulate the tools, technology, and content, as they have done with conventional literacy
and the promotion of conformity and orthodoxy:
Like conventional literacy, digital literacy is being "schooled" to conform to the logic of manipulative institutions (compulsory consumption of services), and to be made into something manageable at the level of totalizing systems. Given space we would run a full argument for cultural practices of computing that parallels [Ivan] Illich's [(1971)]
argument for how learning as a cultural practice has been schooled under the logic
of manipulative institutions. Indeed, with official constructions of "digital literacy"
cultural practices of computing are actually turned into compulsory, consumption of curricularized and certificated learning.
(ibid., p. 7)
These experts on new technologies argue in favor of adopting a sociocultural
approach to digital literacies instead of an autonomous model. They explain
that according to an autonomous model, literacy consists of skills, tools, and
techniques, with more of a focus on cognitive competencies and user abilities.
The mindset adopted remains the same as that applied for Western alphabetical
literacy -- which consists in mastery of letters and phenomena that are coded
and printed. They explain further that unfortunately when this model is applied
to digital literacies, it is too simplistic:
"Digital literacy" consists in so many lists of what the abstracted skills and techniques are that a proficient person can "do." Once they "have" them they can then put them to useful purposes in work, at home, at school, etc., and function "competently." Courses that set about "teaching" learners these tools and techniques, and certify them when they are finished. (The process is almost precisely the opposite from what, for example, young people do when they set about learning how to play online games and to become part of an online gaming community) . . .
Critique of the autonomous model of literacy from the standpoint of sociocultural
theory does not deny that elements of skill and technique are involved in practices of reading and writing. Obviously, they are necessarily present. The point is, however, that these "skills" and "techniques" actually differ in important ways when they are embedded in different practices which involve different purposes and where there are different kinds of meaning at stake (compare, for example, "searching"). Moreover, the skills and techniques of decoding and encoding do not actually take us very far at all on their own. This is because reading and writing is always "reading and writing with meaning" and this meaning is not primarily, or even substantially, a function of some "skill" or "technique" that might be called "comprehension." It is predominantly a
function of social practice, social context, and of Discourse (Gee, 1996) in a sense that is very close to Wittenstein's (1953) concept of "forms of life."
(ibid., p. 8)
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I find it ironic that, once again, it is sociocultural context, value of discourse, and meaning making that are overlooked as institutions grapple with adapting to new technologies. This is no different from what we have seen in the controversies surrounding the banning of traditional textbooks (Shariff & Johnny, 2007). It is no wonder, then, that when students engage in forms of online discourse defined as "cyberbullying," school officials and teachers tend to place
the full responsibility on the shoulders of parents or on behavior "problems"
with the students.
In adopting the autonomous approach, schools have tended to overlook
their obligation as educators to encourage socially responsible and critically informed dialogue and discourse among students. As we have seen, adults feel lost in cyberspace because their mindset still overwhelmingly resides in the
physical world. Hence, when addressing some of the serious emerging issues
that concern online harassment, homophobia, death threats, and racial, sexist, and homophobic slurs perpetrated by some students against others (which
fall under the umbrella of bullying and cyberbullying), some educators and
researchers look for oversimplified and manageable responses. They search for
standardized assessment and intervention tools, as well as evaluation models grounded in their physical world, which they organize into manageable
"buckets" as they search for strategies and national "blueprints" to control the
emerging problems related to cyberbullying.
For example, at recent advisory meetings on cyberbullying (PREVNet,
2006), one group of Canadian experts, comprising academics, researchers,
school administrators and officials, students, and nongovernmental organizations, was brought together to discuss cyberbullying. The objectives were to
gain a better understanding of the problem, to develop policy, and to plan
interventions and programs to address the issue in schools. Participants were
presented with statements such as "bullying hurts" and "bullying is a relationship problem" and asked to consider the cyberbullying and technology issues
within the message of these statements. These "buckets" or statements not only
ignored the sociocultural context and diversity in which bullying occurs but also overlooked the complexities and range of digital literacies in cyberspace and their enabling abilities for mediating and relating. The approach also ignored the political and systemic hierarchies of power that can develop over time in many schools and greatly affect administrative efforts to foster inclusive, cohesive, and collaborative school environments. Ironically, it was primarily the
youth seated around the table at the PREVNet meeting who reminded adult
experts -- the researchers, psychologists, educators, and sociologists -- that it
was important to reconceptualize their notions of relationships in cyberspace.
The young participants spoke about the possibilities of mediation in cyberspace
and most insisted that digital literacies have opened up a world with the potential for positive and interesting social relations. The meeting culminated with
the decision to create an online advisory committee, where the youth helped
adult scholars and educators navigate through cyberspace. The success of such
a committee will largely depend on the commitment and recognition of a sociocultural dimension by the network leaders.
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As Lankshear and Knobel (2006) explain, the "it" approach seeks to normalize, manipulate, and fit the use of new technologies into a nicely packaged
and manageable product that can then be marketed across the country and
internationally as a "blueprint" that will help to manage the problem. This
is the same conceptual approach that underpinned the overwhelming failure
of antibullying programs in the physical school context. Since the mid-1990s,
schools have been inundated with antibullying programs that were marketed
as the "solution" to all bullying problems. Few were successful because they
oversimplified the environmental and biological influences, including systemic
forms of racism, sexism, homophobia, and ableism (see Anand, 1999; Shariff,
2004; Shariff & LaRocque, 2001). I argue that such an approach yet again
represents a form of "selection" as censorship -- where the underlying sociocultural influences and institutional barriers that we have addressed earlier in
this book are overlooked as legitimate concerns -- whether they occur in the
physical school setting or in virtual space.
For the reasons stated here, few adults know how to access or "supervise"
what their students and children are doing on home computers, Blackberries,
and personal cell phones that have text-messaging and photographic capabilities. Therefore, as young people venture easily into the vast and borderless
realm of cyberspace, few adult guidelines exist to help users develop ethical
responsibilities.
This loss of "control" and media framing of the Internet as fraught with
dangers invites the desire to regain control through the only means familiar to
adults -- through punishment and discipline, or legalized and "forceful" means
if necessary. Because "technology" is understood within an adult mindset to
put too much power into the hands of young people, a movement among educators internationally for governments, school boards, and teachers' unions
has arisen to develop stronger laws and codes of conduct, clamp down on
the "bullies," and avoid the type of anarchy that took hold of the boys on
Golding's island. Moreover, because "technology" provides the tools for these
forms of bullying, the thrust is to ban or manage "it" to the greatest extent
possible by disallowing cell phone, iPod, and laptop use in classrooms and
"banning" access to Facebook and similar networks by withdrawing computer
privileges as punishment. Before moving on to look at the policy approaches
that have emerged as a result of the adult mindset and reaction to student
online expressions, it is important to consider what the courts have said about
such expression. This will give us a better idea of how compatible government and school policy responses are, with the substantive legal responsibilities that are laid out under established and emerging law relating to student
expression.
FREEDOM OF EXPRESSION VERSUS SAFETY AND PRIVACY
There have been mixed court rulings on the extent of school responsibilities or
expectations to interfere when students engage in forms of cyberbullying from
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personal computers. In one case, the "Phlashlyte" underground newspaper was
critical of school policy. Given that this expression might not have been as
offensive as some of the sexual and demeaning commentaries posted online,
the court noted:
School officials may not judge a student's behavior while he is in his home with his family nor does it seem . . . they should have jurisdiction over his acts on a public street corner.
( Sullivan v. Houston Indep. Sch. Dist., 1969)
When cyber misconduct first began to emerge in lawsuits, some U.S. judges
refused to acknowledge that online harassment contains a violent message.
Consider some of the initial court rulings on cyber harassment. In one instance,
a student set up a Web site denouncing the administrators and teachers at a
university. This Missouri case involved a seventeen-year-old student who was
suspended for ten days for creating a Web site from home. The site included
vulgar language and made critical comments about the school's homepage.
He was ordered to take down the page, an injunction was granted, and the
suspension was cancelled on the following basis:
Disliking or being upset by the content of a student's speech is not an acceptable justification for limiting student speech. . . . Speech within the school that substantially interferes with school discipline may be limited. Individual student speech which is unpopular but does not substantially interfere with school discipline is entitled to protection.
( Beussink v. Woodland RIV School District, 1988)
The court went on to say that fear of disruption to the school environment
must be a reasonable fear -- not an "undifferentiated fear." The court had a point regarding the "undifferentiated" and "reasonable" fear. As I have discussed elsewhere in a recently published book directed towards parents and classroom teachers (Shariff, 2008), and in the preceding chapters, the fear
created by media reports, harsh school policies, and concern about reputation could result in a "chilled environment." In some schools, the reaction
to student expression might be the result of an already "poisoned" environment, causing irrational fears in the minds of teachers that the Internet is
helping students get out of control. Similarly, in United States of America,
Plaintiff v. Jake Baker (1995) (as cited in Wallace, 1999), Jake Baker posted a story to the newsgroup alt.sex.stories. His story graphically described the rape and torture of a university classmate. He also communicated (via e-mail to a
friend) his plans to actually carry out the rape. Students who read the story
were outraged and charged him with criminal harassment. The district court
threw out the claim holding that because there was no possibility of physical rape on the Internet, there could be no claim for harassment. Moreover,
the court was reluctant to infringe on Baker's freedom of expression rights.
The precedents set by these courts were followed in The People v. B. F. Jones
(1886).
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The case involved sexual harassment of a female participant in a MUD (multiuser domain) group by Jones, a male participant. The court explained that
It is not the policy of the law to punish those unsuccessful threats which it is not presumed would terrify ordinary persons excessively; and there is so much opportunity for magnifying undefined menaces that probably as much mischief would be caused by
letting them be prosecuted as by refraining from it.
(as cited in Wallace, 1999, 288)
This reluctance by the courts to avoid involvement in the quagmire of
cyberspace is not surprising. The courts have also typically adopted a hands-off
approach in matters of educational policy. In the realm of physical violence in
schools, for example, U.S. courts have set a high threshold for plaintiffs to bring claims for negligence against schools, in some cases even when students have
been shot or knifed (Shariff & Strong-Wilson, 2005).
As the court said in the 1969 case, Tinker v. Des Moines Independent Community School District, "students do not leave their rights to free expression at the school house gates." Consequently, it is important to make an informed assessment that where online comments posted about teachers are honest and
close to the truth, they ought not to be reacted to with such force. Where the
comments are clearly libelous or threatening, it is worth talking to the students
to determine the source of their anger. Is the anger rooted in a poisoned school
environment? Are the resulting cyber comments the only outlet of expression
for students? The following case is an example of a school's overreaction to
student online discourse.
In a Washington State case, a tongue-in-cheek Web site, the "Unofficial
Kentlake High Home Page," was created by Emmett, a high school senior,
cocaptain of the basketball team, with a 3.95 grade point average. (In North
America, a 3.95 grade point average out of 4.0 means that Emmett was a
straight "A" student.) The Web site included positive and negative disclaimers
and joke obituaries. The purpose of the joke obituaries was to release some
of the tension of exams and assignments, where students wrote their own
obituaries for a laugh. On the basis of the joke obituaries, an online voting
system began on the Web site about "who should die next" and become the
subject of the mock obituaries. Someone reported the Web site to the media,
who reported the site as including a "hit list" of people Emmett was planning
to kill. The Web site was immediately taken down, and Emmett was expelled
for "intimidation, harassment, disruption to the educational process, and
violation of Kent School District copyright." A restraining order was also
granted. Emmett sued the school, and the court stated the following:
The School District argues, persuasively, that school administrators are in an acutely difficult position after recent school shootings. . . . Web sites can be an early indication of a student's violent inclinations. . . . The defendant, however, has presented no evidence that the mock obituaries and voting were intended to threaten anyone, did actually threaten anyone, or manifested any violent tendencies whatsoever.
( Emmett v. Kent School District No 413, 2000)
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The court drew attention to the overreaction by the school, which was out of
context to the online joke about people being killed. In this case, the court ruled that the fact that the Web page was created outside of school grounds without
school supervision was relevant to the school's ability to discipline, even if the
intended audience was school-based.
This case is important for students such as Brad and Bram, discussed in Chapter 3, who were suspended for their online expressions. These boys believed that
their comments were outside of school jurisdiction, as well as some of their parents, would support the Emmett decision as being fair. However, other judicial decisions have made it clear that if there is a nexus (or connection) to the school (peers, teacher, school property), then there is an absolute right to intervene.
For example, the court handed down a different ruling in a Pennsylvania
case. J. S. was a student in the eighth grade at Nitschmann Middle School
during 1997--1998. Kathleen Fulmer had taught there for twenty-six years as
a math teacher. J. S. informed a fellow student that he had created a "Teacher
Sux" Web site that included on it:
Why Fulmer should be fired
She shows off her fat f
legs
She's a bitch
Why should she die?
Give me $20 to help pay for the hitman
Diagram of Mrs. Fulmer with her head cut off
( J. S., a Minor, v. Bethlehem Area School
District (2000)
After viewing the Fulmer site, the principal informed Mrs. Fulmer because
he took the threats seriously. Mrs. Fulmer was frightened, fearing someone
would try to kill her. Mrs. Fulmer had lasting effects, including stress, anxiety,
and loss of appetite, sleep, weight, and sense of well-being. The court stated
that schools must teach by example the shared values of a civilized society.
It is not socially acceptable to threaten or harass those that are charged with
educating our youth. The student's Web site materially disrupted the learning
environment. The principal was embarrassed by the student's allegations, and
Mrs. Fulmer felt threatened. Teachers and students were aware of the student's
disdain for school officials and discussed the Web site at school. This behavior
presented a substantial interference with the educational process.
The school board voted to expel the student permanently from its schools.
The student appealed, and the decision went to trial. The trial judge supported
the decision. On appeal to the Commonwealth Court of Pennsylvania, the court
upheld the expulsion because the contents of the Web site constituted threats
that were criminal in nature and not constitutionally protected (ibid.).
This decision was similar to a Canadian case of telephone bullying, where
fourteen-year-old Dawn Marie Wesley hanged herself after one of her classmates uttered the words "You're f. . . . g dead!" over the phone after ten days
of intense bullying ( R. v. D. W. and K. P. D., 2002). Dawn Marie's perpetrator STUDENT FREE EXPRESSION
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was charged with criminal harassment because the "perceived intent to harm"
was taken seriously by the victim as actual intent to harm, resulting in her
suicide. Although this was a lower court ruling, it may have opened the door
to future claims, including those involving cyberbullying, in which perceived
intent of harm is real. Biber et al. (2002, as cited in Glaser & Kahn, 2005) found that unwanted sexual comments and harassment online were found to be most threatening. They suggest that the online medium may be more frightening than
face-to-face harassment, especially because the perpetrator can take refuge in
his or her virtual identity.
Fourteen-year-old D. W. H., the teenager who said the words, was held criminally liable but maintained throughout that she had no intention of killing
Dawn-Marie. D. W. H. was invited on various American television talk-shows
including that of celebrity Oprah Winfrey, and in some cases made to apolo---
gize publicly for Dawn-Marie's death -- something that I felt was too harsh a
punishment for a teenager who uttered words that young people often use in
uncontrolled anger but rarely mean literally.
To make matters worse, D. W. H. was an aboriginal Canadian. The Cau---
casian girls who had joined her in bullying Dawn-Marie were let off with no
criminal liability or court sentence. What was even more unfair in my opinion was a lecture delivered to D. W. H.'s aboriginal community on bullying
by U.S. "bullying" expert Barbara Coloroso ("It's a girl's world: A documentary about social bullying," 2004 [video]).2 It seems ironic that an aboriginal
community that had sustained generations of bullying and abuse from North
American settlers, a community that had its children torn away from its families
and placed in Catholic residential schools to be beaten and sexually abused by
priests, a community that bears the scars of generations of displaced families
and cultural traditions because of colonization, was also subjected to a lecture
on why bullying is not acceptable. The First Nations people in Canada were
subjected to terrible abuses by European colonists who wanted to "civilize"
them. Hence, I would argue that we are never justified as a society to take "bullying" at face value. There is always a larger context that requires attention.
This is why I seriously caution against being too quick to lay blame on children
and the Internet, without critically questioning our own institutional systems
and power hierarchies.
Landmark school cases from both Canada and the United States, however,
do provide some direction as to where the courts stand under existing law and
how they might rule in cases of cyberbullying that require censorship of student
expression by schools. In each of these cases involving free speech in schools,
one of the key considerations is space -- or where the expression occurs. Questions of where the speech originated (on-or off-campus), who instigated it, how it affected others, and how it was addressed by officials inform the deliberations of this issue by the courts. As we attempt to apply these deliberations to
the contemporary context, we must remind ourselves that even though cyberbullying takes place in the electronic airwaves, it creates unwelcome physical
school environments where equal opportunities to learn are greatly reduced
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(Shariff, 2003). Cyberbullying, regardless of where it originates, is an educational issue. However, as I have stressed earlier in this chapter, responses to it cannot be addressed and accommodated to fit a convenient package of interventions to be blueprinted. The legal considerations discussed now support my view that a conceptual understanding of the freedom versus authority issues
that emerge as a result of cyberbullying are far more complex.
Constitutional Considerations
In most democratic nations, freedom of expression is guaranteed to its citizens.
In the Canadian context, Section 2 of the Charter (Canadian Charter of Rights
and Freedoms, Schedule B, Constitution Act, 1982, Canada Act, c. 11 [UK]) provides that everyone is entitled to freedom of "thought, belief, opinion and expression." These freedoms are only limited by Section 1 of the Charter, which
helps the courts weigh and balance individual rights with the collective rights
of the greater good in a democracy. Accordingly, Section 1 of the Charter states
that the rights set out in it are subject "only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Any
school policy that infringes on individual rights must therefore be justified by
the policy maker as having a pressing and substantial objective to protect the greater good of society. The onus also rests with policy makers to establish that the rights in question will be infringed as minimally as possible (see R. v. Oaks, 1996).
According to MacKay and Burt-Gerrans (2005), the Section 1 analysis has
generally been applied to justify protecting the widest possible definition of
freedom of expression. These scholars explain that expression is constitutionally protected as long as it is not violent ( Irwin Toy Ltd. v. Québec (Attorney General), 1989). This means that any expression that intends to convey nonviolent meaning is normally safeguarded by the courts. This wording is critical when we consider the student postings online. Depending on the exact content of the expression, if students are simply joking about their teachers and intend to convey nonviolent meaning, it should be safeguarded by the courts.
This interpretation has been extended to the school setting. For instance,
one of the best-known Canadian cases of protected freedom of expression
in schools is Lutes v. Board of Education of Prairie View School Division
No. 74 (1992). The case involved a rap song that contained a message to students to reduce promiscuity. Chris Lutes sang a song by Salt 'N' Pepa titled "Let's Talk about Sex" in school even though the song had been banned by
the school district. He was suspended and sought judicial review. The court
found that his freedom of expression rights under Section 2(b) of the Canadian
Charter of Rights and Freedoms had been violated and that the policy banning the song did not reasonably justify the infringement of those rights. In fact, the court stated that this was an overreaction to an educational song about sexual
abstention because an assistant superintendent was visiting the school at the
time when Lutes, knowing who he was, continued to sing it in his presence.
A U.S. court took a similar position involving a student's political speech
on MySpace. The main issue in the case, A.B. v. State of Indiana (2002),
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was whether a high school student's messages on a MySpace page constituted
protected political speech under Indiana State constitutional protections regarding freedom of expression. Article 1, Section 9, of the Indiana Constitution
reads:
No law shall be passed, restraining the free interchange of thought and opinion or
restricting the right to speak, write, or print, freely, on any subject whatever, but for the abuse of that right, every person shall be responsible.
The student, A. B., was prosecuted on six counts of harassment in juvenile
court for posting messages on two MySpace pages (one created by a friend
and another by herself) with respect to her principal, which the state alleged
constituted harassment. Her message on her friend R. B.'s MySpace page read
as follows:
Hey you piece of greencastle shit
What the fuck do you think of me [now] that you can['t] control me? Huh?
Ha ha ha guess what I'll wear my fucking piercings all day long and to
School and you can['t] do shit about it! Ha ha fucking 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 from the Web page created by her friend R. B., A. B. created a publicly accessible
group on MySpace under the group name: "Fuck Mr. Gobert and GC School"
(ibid., p. 71). Mr. Gobert testified that he never received these postings directly but only viewed them on the respective Web sites after gaining access to them.
The juvenile court stated the following when it handed down a nine-month
probation sentence with various conditions attached:
As the well known U.S. Supreme Court decision "One knows Pornography when one
sees it," this court finds that such language is obscene in the context used by [A. B.]
[A. B.] was not exercising her constituted rights of free speech in such a tirade -- but to use the most vulgar language she could. Moreover she was not expressing her opinion in her writing.
(para. 1, n.p., Court of Appeal reasons for Judgment)
A. B. appealed the decision on the grounds that her freedom of expression
rights had been infringed. The appeal court reviewed Article 1 and noted that
to be protected, the form of speech should constitute "the free interchange of
thought and opinion." The appeal court found that A. B. was strongly protesting the school policy against ear piercing and that although she conveyed this
message using foul language, she was still making a political statement. The
second prong of the test was whether the principal, Mr. Gobert, had established that the harm he received was analogous to "tortuous injury." The court
found that he had failed to do this and concluded that, indeed, A. B.'s right to
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freedom of expression had been infringed. The court overturned the juvenile
court probation for harassment, ruling as follows:
[W]e are mindful that political expression is not shielded from all criminal liability. Price, 622. N. E.2 d at 954. As we stated before, "when the expressions of one person cause harm to another in a way consistent with common law tort, an abuse under Section 9 had occurred." Id. At 964: see also Shoultz, 735 N. E. 2 d at 825--26. Here, the State failed to produce any evidence that A.B.'s expression inflicted particularized harm analogous to tortuous injury on readily identifiable private interests as required to rebut A.B.'s claim of political speech. Based on the evidence before us, we find that there is insufficient evidence to support that A.B.'s adjudication of harassment based on her posted message of February 15, 2006, is consistent with her right to free speech contained in Article 1, Section 9 of the Indiana Constitution. Therefore, we hold that A.B.'s conviction for harassment contravened her right to speak, as guaranteed by the Indiana Constitution.
Accordingly, we remand to the trial court with instructions to vacate her adjudication.
(ibid., p. 10)
This decision, like Lutes, has significant implications for policy as it relates
to student expression on social communications networks and Web sites. Both
cases provide support for the protection of substantive expression -- which has clear objectives, no matter how it is conveyed, even if foul language is used.
Forms of expression that simply demean the reputations of teachers and peers
without any underlying political message or stating of an opinion might more
readily be considered to be harassment or, as discussed in Chapter 3, libel.
Most U.S. cases continue to use a triumvirate of cases that took place more
than forty years ago as standard guiding precedents. These cases, and subsequent decisions that rely on the standards set out by the U.S. Supreme Court,
bring to clearer focus the limits on student free expression in the school context. While the triumvirate of cases do not apply to cyberspace, subsequent
cases involving student expression off-campus have continued to rely on them.
Expression as "Material and Substantive Disruption"
The decisions rendered in Lutes and A. B. support a standard for free speech
in schools established in U.S. cases: unless student expression materially and
substantially disturbs the learning process, it cannot be censored or suppressed.
For instance, in a landmark 1969 case, Tinker v. Des Moines Independent
Community School District (1969), John and Mary Tinker and Christopher
Eckhardt were suspended because they wore black armbands to school as a
silent form of political protest against the Vietnam War. They had ignored
school administrators' warnings not to wear them. They sued the school district
under the freedom of expression provisions of the First Amendment. The court
ruled in favor of the students, stating the famous dictum that "[i]t can hardly
be argued that either students or teachers shed their constitutional rights to
freedom of speech or expression at the schoolhouse gate" ( Tinker v. Des Moines
Independent Community School District, 1969, p. 506).
Servance (2003) explains that the key to the Tinker holding is that unless schools can show a valid reason for restricting it, students should be allowed to STUDENT FREE EXPRESSION
117
express their right to free speech. The court acknowledged, however, that this
is not an unfettered right. Students have a right to regular speech unless that
speech either materially disrupts a school's ability to carry out its mission in an orderly fashion or infringes on the rights of others to be free from harassment.
It is the material and substantial standard created in Tinker that courts continue to apply in contemporary cases. As noted by Justice Fortas: The principle of these cases is not confined to the supervised and ordained discussion which takes place in the classroom. The principal use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types of activities. Among those activities is personal intercommunication among the students. . . . This is not only an inevitable part of the process of attending school; it is also an important part of the educational process. A student's rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without "materially and substantially interfere[ing] with the requirements of appropriate discipline in the operation of the school" and without colliding with the rights of others . . . but conduct by the student, in class or out of it, which for any reason -- whether it stems from time to time, place, or type of behavior -- materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.
(ibid.; emphasis added)
There is no question that Justice Fortas was referring to the school environment as it was then, but if this standard continues to apply in contemporary
cases of free expression and supervision, it is arguable that the prescribed hours
of schoolwork have changed as students are increasingly expected to work on
computers and access the Internet for their school-based assignments outside
of school hours. Furthermore, a key point in this statement is that personal
communication among students "is not only an inevitable part of the process
of attending school; it is also an important part of the educational process"
(ibid.). It can be argued that if intercommunication among students is an integral aspect of the educational process, and if such communication "materially
or substantially" disrupts the learning of others (thereby affecting their rights of equal access and opportunities to learn without harassment or discrimination),
schools have the authority to censor it. The learning environment in schools is
no longer restricted to the campus. It is fluid. Interaction in the physical school setting continues in cyberspace. Students (and teachers) through e-mail continue their intercommunication in cyberspace. Thus the on-campus/off-campus distinction is not easily defined. It is much more realistic to consider the educational environment in terms of physical and virtual contexts in which learning
and student communication takes place.
When the nature of student intercommunication crosses the invisible but
very real line from regular horseplay and teasing to bullying, there exists a
responsibility for an educational response from schools, especially when there
is a nexus to the school (Mitchell & Kendall, 2007; Roher, 2007). When the
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CONFRONTING CYBERBULLYING
bullying moves into the virtual school environment without any supervision
or attention from educators, it can have devastating consequences not only on
student learning but also on student health (Shariff, 2004).
Cyberbullying against peers, teachers, or school officials has a profound
impact on the learning of all students, both on and off school property. Justice
Fortas's comments regarding student conduct in class or out of it are applicable
in this regard: "[w]hether it stems from time to time, place, or type of behavior -- materially disrupts class work or involves substantial disorder or invasion
of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech" ( Tinker v. Des Moines Independent Community
School District, 1969, p. 513). Accordingly, it makes sense that if the courts are to continue relying on Tinker, that it is this aspect of the case that applies to restrictions on freedom of speech in the cyberbullying context. This is not to say that I disagree with the decision in the context of the silent political protest that was made by the students concerned in the case. I wholeheartedly agree
that students do not leave their rights to free speech at the schoolhouse gate.
I stress, however, that when such speech comprises harassment and abuse of
other students and embarrassment of teachers and school officials without being
addressed through some form of dialogue and communication with the students
involved, it creates a hostile and unwelcome environment for students (both on
campus and in cyberspace) because it disrupts the educational objectives of
schools.
Chapter 5 addresses the issue of school environment in greater detail to
illustrate that it is not just the students who can poison the learning environment but also the teachers and school officials, depending on how they develop and
implement educational and disciplinary policies and practices.
Expression as "Disruption of Basic Educational Mission"
In the U.S. context, a new standard on student speech was set in 1986. The
Supreme Court held in Bethel School District No. 403 et al. v. Fraser, a minor, et al. (1986) that schools may prohibit speech that undermines their "basic educational mission" (p. 504). The case involved a campaign speech made by
student Matthew Fraser that contained insinuations to sexual and political
prowess:
I know a man who is firm -- he's firm in his pants. . . . [He] takes his pants and pounds it in. . . . He doesn't attack things in spurts -- he drives hard, pushing and pushing until finally -- he succeeds. . . . [He] is a man who will go to the very end -- even the climax for each and every one of you.
(ibid.)
The school suspended Fraser, noting that his speech distressed some students
at assembly. He was not allowed to speak at graduation and sued the school
under his First Amendment rights to free speech. Responding to the dissenting
opinions in Tinker, the court voiced its concerns about the need for schools to STUDENT FREE EXPRESSION
119
retain control over student behavior and noted that schools are not the type
of arena for the type of vulgar expression in Fraser's speech. The court noted
that schools should not have to tolerate speech that is inconsistent with school
values. While the court acknowledged that it is crucial to allow unpopular
speech, it emphasized that schools have a vital role in preparing students to
participate in democratic society, by teaching students the "appropriate form
of civil discourse" necessary in civil society (ibid., p. 511).
Of significant relevance to censorship of online student expression today, this
ruling also stated that schools must teach students the boundaries of socially
acceptable behavior (Servance, 2003). The court stated that threatening or
offensive speech has little value in a school setting and cannot be ignored by
schools. Moreover, the court noted that the speech infringed the rights of others
(although it did not specifically state it, on the rights of females in the audience). The sexual insinuations to rape were clearly offensive and threatening to
students.
The Fraser decision extends Tinker and is also, in my view, applicable to censorship of student freedom of expression in the cyberbullying context. As I have explained in Chapters 2 through 4, a substantial amount of the emerging
research on Internet communications discloses sexual harassment, sexual solicitation, and threats against women or female students. Not only does this form
of cyberbullying materially disrupt learning and impede educational objectives, it creates power imbalances within the school environment and distracts
female students from equal opportunities to learn. Consistent with the Fraser
ruling, expression of this infringes their constitutional rights in an educational
context and creates a hostile and negative school environment (physical and
virtual).
The triumvirate of cases was also relied on recently in a landmark U.S.
Supreme Court decision, Morse v. Frederick (2007). This well-publicized case, more commonly known as the "Bong Hits for Jesus" case, involved the off-campus expression by Frederick, a senior student at an Alaska high school.
Although this case has no connection to the Internet, some of the issues it dealt
with might well be applied by a court on the limits of student expression outside
school grounds and even in cyberspace. The facts of the case are as follows.
On January 24, 2002, the Olympic Torch relay was scheduled to pass by the
school, so the principal, Morse, allowed students and staff to watch the relay
as an approved school event or field trip. Students were allowed to line up
on both sides of the street, and some stood across the street from the school.
Frederick and his friends unraveled a fourteen-foot banner bearing the phrase
"BONG HITS FOR JESUS" as the torch bearers and camera crews passed by.
(A "bong" is a device for smoking marijuana.) Morse approached the group
and demanded that the banner be taken down. All the students except Frederick
complied. Morse took the banner and told Frederick to go to the office, after
which she suspended him for ten days. Morse informed the court that her
reasons for suspending him were due to his advocacy of drug use during a
school-sanctioned event.
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CONFRONTING CYBERBULLYING
Frederick sued Morse and the school board, claiming violation of his First
Amendment free expression rights. At first instance, the court granted Morse
and the board summary dismissal of the claim, holding that Morse had not violated Frederick's rights. The Ninth Circuit Court of Appeals, however, reversed
the lower court ruling, finding a violation of Frederick's First Amendment
rights.
At the Supreme Court level, a 5--4 majority, in a controversial decision,
reversed the Ninth Circuit decision. The court found that because the banner
advocated the use of illegal drugs, a school principal could restrict, at a school
event (whether on campus or outside of it), student speech where such speech
can reasonably be regarded as promoting illegal drug use. The case is important
for our purposes because it marks some recognition by the top U.S. court of the
ability of the principal to exercise control over student behavior and expression outside the strict boundaries of the school and is somewhat of a departure
from the usual emphasis of free speech over governmental authority control
that usually marks U.S. decisions on student speech. The landmark precedent
could plausibly influence further judicial decisions regarding control of communications on the Internet. However, given that the subject matter in this case
was the well-recognized danger of drug use, it may be a stretch to say that
because school principals can control expression related to that issue, they can
also control expression that affects the school but emanates from home computers or personal cell phones. On the other hand, the court relied strongly on
the Tinker and Fraser cases, bringing into the framework of analysis the standards of "material and substantial disruption to learning" and disruption of the "educational mission." Some of the quotations from the case are interesting
and include the following:
1. On page 2 of the reasons for judgment, the court quoted Fraser, which quoted from Tinker: "[T]he rights of students must be applied in light of the special characteristics of the school environment."
2. On page 10 of the reasons for judgment, again quoting Fraser, the court stated that "the constitutional rights of students in public school are not automatically co-extensive with the rights of adults in other setting."
3. On page 11, the court noted: "Kuhlmeier acknowledged that schools may regulate some speech even though the government could not censor similar speech outside of school" and the famous Tinker quote: "[W]hile children assuredly do not shed their constitutional rights at the schoolhouse gate, the nature of those rights is what is appropriate for children in school."
4. Finally, on page 15 of the reasons for judgment, the court said this: "School principals have a difficult job, and a vitally important one. When Frederick suddenly and unexpectedly unfurled his banner, Morse had to decide to act -- or not act -- on the spot."
( Morse v. Frederick, 2007, p. 15)
All of these statements by the Supreme Court suggest that student free speech
in a school context (not necessarily within school grounds) can legitimately be controlled by school authorities, if such expression is perceived to have a STUDENT FREE EXPRESSION
121
negative influence on other students or disrupt learning. The last point that
refers to the principal's need to make an on-the-spot decision under pressure is
very relevant to recent controversies in which students have been immediately
suspended for their online expression. The decision also suggests that students
cannot expect the same amount of freedom off school grounds as adults can to
say what they want. In the context of cyberbullying, the quote "while children
assuredly do not shed their constitutional rights at the schoolhouse gate, the
nature of those rights is what is appropriate for children in school" could apply
to both sides of the schoolhouse gate if there is a nexus to the school. There
are a number of decisions that support school intervention if there is a nexus
to the school.
Nexus: Computers as School Property
Under Section 8 of the Canadian Charter of Rights and Freedoms, everyone has
the right to be free from unreasonable search and seizure. Hence protection of
privacy is guaranteed within reasonable limits in a free and democratic society.
Furthermore, Section 7 of the Charter states that "everyone one has the right
to life, liberty and security of the person." In the cyberbullying context, both
these sections are relevant. The boundaries with respect to the obligations on
schools to override search and seizure rights to protect others must be balanced
with the right to life, liberty, and security of the person. Furthermore, victims
might argue that their rights to life, liberty, and security of the person are
infringed under Section 7 when schools fail to intervene and protect them from
cyberbullying.
Based on Section 1 considerations, the courts generally give priority to the
safety of the greater number of stakeholders as justification for overriding privacy rights. For example, the Supreme Court of Canada, in R. v. M. R. M.
(1998), ruled that as long as a school principal is not acting as an agent of the
police, he or she can search student lockers if there is a suspicion of hidden
weapons or drugs. The high court held that school lockers are the property
of schools. When there is a danger to safety and learning of the students,
the infringement on student privacy rights can be reasonably justified under
Section 1 of the Charter. Given the devastating psychological consequences of
cyberbullying on victims and the entire school environment, it is possible that
in a Charter interpretation that requires a balancing of the victim's right to
safety under Section 7 and the perpetrators' right to computer privacy under
Section 8 and free expression under Section 2(b), the court might rule in favor
of the victim.
For example, MacKay and Burt-Gerrans (2005) explain that the rationale
used by the Supreme Court in R. v. M. R. M. was that students should already have a lowered expectation of privacy because they know that their school principals or administrators may need to conduct searches in schools and that
safety ought to be the overriding concern to protect students. This perspective
strongly resembles the Morse v. Frederick decision in terms of the lowered expectation of privacy. The high court explained its interpretation of a safe and ordered school environment:
122
CONFRONTING CYBERBULLYING
Teachers and principals are placed in a position of trust that carries with it onerous responsibilities. When children attend school or school functions, it is they who must care for the children's safety and well-being. It is they who must carry out the fundamentally important task of teaching children so that they can function in our society and fulfill their potential. In order to teach, school officials must provide an atmosphere that encourages learning. During the school day, they must protect and teach our children.
R. v. M. R. M., 1998)
This statement by the court is also highly significant to indirect or unintentional cyberbullying of teachers. The statement places a high responsibility on
teachers and the protectors of children and disseminators of education.
The court's rationale is along the line of U.S. cases that have also confirmed
school lockers as the property of schools. Therefore, it is not an infringement
of constitutional rights to search and seize the contents if they breach school
policies ( Singleton v. Board of Education, 1995). For example, the courts noted in People v. Carlos Overton (1967) that schools can issue policies regarding what may be stored in school lockers. Correspondingly, educators are entitled to conduct spot checks or involuntary searches of lockers to ensure that students comply with these regulations. In fact, the courts regard the inspection
of student lockers not only as a right but also as a duty of schools when it is believed that a student is using school property to harbor illegal materials. This logic could certainly be applied to the cyberbulling context if schools have a
censorship policy regulating the type of content that may be sent or received
from school computers. For instance, it could be argued that, similar to lockers, e-mails are owned by the school because they are transmitted using school
property. Therefore, if a student is suspected of sending harassing comments via
e-mail or has found such comments while browsing on school computers, the
school officials should consider it their responsibility to monitor and discipline
this activity.
This point might be further justified by other cases (including Garrity v. John Hancock Mut. Life Ins. Co., 2002), which found that employers have a right to inspect employee e-mail accounts when employees are notified that messages are
accessible to a third party. With regard to school searches, we can also consider
cases such as New Jersey v. T. L. O. (1985). In this ruling, it was held that although students have a legitimate expectation of privacy within the school setting, schools also have a right to search student property, without a warrant,
if there are reasonable grounds for suspecting that the student is violating either the law or the regulations of a school. If this is expanded to cyberspace and
the virtual school environment, it could be argued that the nexus to school
is no longer limited to physical space. Therefore, although students have a
legitimate expectation of privacy for their online conversations, if there is some
connection to the school, especially to teachers as authority figures, it follows
that something needs to be done about it. Again, it would seem reasonable for
schools to apply this rationale if there is reason to believe that students are
using school computers or school Web sites to conduct illegal activity such as
the harassment of others.
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124
STUDENT FREE EXPRESSION
CONCLUSION
So far I have identified standards that relate to tort law (cyber libel and negligence in supervision) and to constitutional rights (freedom of expression vs.
privacy). These legal frameworks and case law were presented within the context of why students might continue to believe that they have more rights to
privacy and protected speech in cyberspace than in the real world. I discussed
the adult tendency to oversupervise children compared with the childhoods of
previous generations. I highlighted differences in the mindsets of adults and
children as they conceptualize and approach the Internet and digital literacies.
I illustrated a range of cases to identify and clarify a set of reasonable expectations for schools on the extent of their responsibilities to act, as set out in
Table 4.2. Having learned about reasonable expectations of schools in navigating the completing rights and responsibilities, we can now look at emerging
policy responses that are being applied through new laws, statutes, proposed
bills, and informational Web sites that provide guidelines for schools. We can
determine whether these legal and policy responses meet the judicial standards
expected of schools or whether they fall short in some way.
One area of law that we have not yet brought into the picture -- human
and civil rights jurisprudence -- is instructive in helping us make such a determination. In Chapter 5, I draw on tribunal and judicial decisions involving
harassment and bullying that adjudicated institutional responsibilities to provide school environments conducive to learning. The chapter considers whether
jurisprudence applies to the cyber context and whether the policy responses
meet the mark.
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Canadian Charter of Rights and Freedoms, Schedule B, Constitution Act, 1982, Canada Act, c. 11 (UK).
Chu, J. (2005, August 8). You wanna take this online? Cyberspace is the 21st century bully's playground where girls play rougher than boys. Time, Canadian Edition, 42-- 43.
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Glaser, J., & Kahn, K. B. (2005). Prejudice, discrimination, and the Internet. In Y.
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MacKay, A. W., & Burt-Gerrans, J. (2005). Student freedom of expression: Violent content and safe school balance. McGill Journal of Education, 40, 423--443.
McLaren, P. (1991). Schooling the postmodern body: Critical pedagogy and the politics of enfleshment. In H. A. Giroux (Ed.), Postmodernism, feminism, and cultural politics: Redrawing educational boundaries (pp. 144--173). Albany: State University of New York Press.
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and Virtual
You don't know me . . .
But I know you . . .
I've been watching you at school . . .
And if you don't want to die . . . I'd sleep with one eye open
Down on your knees, bitch!
Raveger, Raveger
(Shariff, 2001)
My first experience with cyberbullying began with an e-mail from "Raveger,
Raveger." The e-mail was sent to our daughter Shelina (pseudonym), when she
was about fifteen years old, in Grade 11 at a high school in British Columbia,
Canada. We came home one afternoon and found her pale and frightened, which
was unusual for this normally feisty teenager. She handed us a printout of the
e-mail that is quoted above. As a parent, I was concerned about Shelina's safety.
Was this a pedophile? Was it an adult at school? If a student was involved, did
he know her walking route home from school? The reference to watching her
at school brought the threat into the realm of the physical school environment,
despite the fact that it was sent over the weekend from a home computer. School
police liaison officers were unsuccessful in tracing the e-mail, and our efforts
to trace the source of the e-mail through the Internet service provider (ISP)
met a brick wall. First there was no response to our calls and e-mails. When
eventually contacted, an ISP manager explained that he could not shut down
the e-mail source to protect the client's free expression rights.
A male classmate eventually confessed that he and three others had sent the
e-mail from his home computer. Once the boy learned police were involved,
he owned up to being coerced by the primary instigator, Mike (pseudonym).
Apparently Mike had wanted to date Shelina, who had refused his advances and
sought revenge through e-mail. Although school administrators were provided
with the perpetrators' names, the boys were not disciplined because the e-mail
127
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CONFRONTING CYBERBULLYING
was not sent from school. Consequently, the harassment continued at school,
where Shelina was stalked and verbally bullied by the boys, who continued to go
by the name of "Raveger." During one classroom project, the boys insisted on
having Shelina join their group. The teacher saw no problem with that, becoming impatient at Shelina's reluctance to join them. Shelina burst into tears. Once
the problem was explained, the teacher confessed to having no prior knowledge
of the incident, despite the principal's commitment to us that he would inform
all Shelina's teachers about the threats the four boys had perpetrated.
This very personal example of cyberbullying raised a number of important
issues for me as a parent and educator. There were concerns, of course, about
the e-mail being sent from a home computer, on a weekend, and received on a
weekend. Hence it raised all the on-campus/off-campus issues relating to who
is responsible that I have discussed in previous chapters. I have also addressed
the issue of the responsibility of the ISP to close the Web site down, based on
the Zeran v. America Online, Inc. (1997) precedent in Chapter 3; hence it is not surprising that the ISP provider did not bother to return our calls for at least a week. There are a number of concerns that this e-mail raises that I have
not addressed, however, which I deal with in this chapter. The first concern is
the issues of sexual and homophobic harassment and their prevalence in cyberbullying. I also mentioned this issue in Chapter 2 but would like to provide
some background in here on the biological and socializing influences that shape
young people's identities, their attitudes, and, ultimately, their behavior toward
others, whether face to face or online.
That aspect of the discussion then leads into a review of relevant human
and civil rights jurisprudence on sexual and homophobic harassment and the
role of that jurisprudence in determining institutional responsibilities to provide positive school environments that are nondiscriminatory and inclusive. As the
discussion in this book so far has disclosed, what takes place in the virtual environment has significant impact on the experiences of students and teachers in
the physical school setting. Accordingly, if cyber expression and conduct is useful, empowering, and positive, this will be reflected in the school environment.
If it is defamatory, libelous, discriminatory, and tacitly condoned, it will result in a chilled or poisoned environment in which the problems will simply perpetuate
themselves. Protection of children as provided by United Nations International
Convention of the Rights of the Child and state and provincial child protection
laws might also contribute to the fostering of such an environment.
Accordingly, I have organized this chapter to inform readers about the biological and social influences that contribute to the development of male and
female identities within their homes and cultural contexts, followed by socializing influences that shape their sense of location or identity within those contexts and greater society, including cyberspace as a social environment. I incorporate research findings on the extent of sexually charged online bullying from
several articles I have written on gendered cyberbullying as part of a consultation for the United Nations secretary general (Shariff, 2006; Shariff &
Gouin, 2006). This is followed by a look at what the human and civil rights
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jurisprudence suggests as appropriate standards of institutional responsibility
to ensure harassment-free environments, responsibilities to protect under international human rights provisions, and state and provincial obligations under
child protection laws. The chapter culminates in a table that highlights institutional legal responsibilities.
GENDERED INFLUENCE ON CYBERBULLYING
Previous chapters suggest a number of gender differences in the way males and
females engage in cyberbullying and communicate with friends through online
social networks. As we have seen, many perpetrators are male teenagers. Is
aggression really bred in the bones of young men, or is it simply the way in
which their biological conditions at prepuberty and during puberty combine
with the social messages they receive from their caregivers and educators? The
statistics presented in Chapter 2 suggest that females are more often targets of
sexual harassment, cyber threats, cyberstalking, and unsolicited pornographic
materials. However, more fascinating are the studies suggesting that cyberspace
has, in many countries and cultures, had a liberating effect on girls. I highlight
studies in this chapter that report how communication technologies have helped
girls and young women become more social and confident and to develop a new
sense of identity and agency that helps them break free from cultural and social
nonfeminist expectations and stereotypes.
The role of the home, especially parents and caregivers in supporting and
enhancing gender roles, is especially important. Gender roles that are allocated
from a young age play out in cyberspace. Those roles also influence the ways
in which adults approach technology use by girls and boys. They further play a
significant role in informing the perspectives of government and school policy
makers, teachers, the media, and other members of the community, each of
whom have a stake in what children learn and express.
Socialization
As soon as children come out of the womb, while still at the hospital, they are
learning. When they come home with their parents, they begin to incorporate
through sense, smell, sound, movement, language, and their parental responses
various cues about communication and the fact that they are social beings in
their new world. Before we move on to consideration of the social factors that
so often define gender roles in our society, we might ask whether biology has
anything to do with whether children will eventually engage in bullying in any of
its forms as they get older. The debate about whether the tendency for violence
is rooted in biology or the environment has not been entirely resolved.
The Biology of Bullying
Some suggest that nature and nurture both affect bullying. Biology and the
social, family, and educational environments that students experience are the
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primary forces involved in bullying. Genes, hormones, personality traits, or
physiological impairments occurring during pregnancy or early infancy can
significantly affect later development. As Boyd observes, "What's bred in the
bone will come out in the flesh" (2000, p. 95). Writing in 2007, we can now
add: "What's bred in the bone will come out in physical and virtual flesh"
as kids take on new personalities in cyberspace. Environmental influences can
be considered the "nutritional elements" that interplay to result in positive or
negative behaviors. It is important to look at the biological and environmental
factors in schools, in the home, and in cyberspace that affect student identifies,
attitudes about themselves, and behaviors toward others. Understanding how
these factors affect students helps us gain insight into how and why bullying of
any kind occurs.
Relevant scholarship in the past two decades has largely defined bullying as
a "developmental" problem -- focusing on aggressive tendencies or behavior of
individual "bullies" and suggesting that those individuals need "intervention"
or "treatment." In other words, the matter has been, and continues to be,
studied from a paradigmatic psychological perspective -- as a health issue. This is slowly changing as developmental psychologists and other researchers globally have begun to realize the importance of context. It is important nonetheless to highlight briefly some of the biological influences that might make a difference in whether a student engages in bullying, becomes constantly targeted as a
victim, or stands by as an observer.
Biological factors, including genetics, hormones, allergies, overactive thy---
roids, attention-deficit disorders, and other physiological influences can influence young children's propensity to bully. Children who exhibit chronic behavior problems from biological sources comprise approximately 6 percent of
the school population (National Crime Prevention Council [NCPC], 1997;
Shariff, 2000). Two major sources of concern here are nutrition and medication.
Research tells us, for example, that substance abuse and lack of nutrition during
pregnancy or the preschool years impair the growth of brain cells and that fetal
alcohol syndrome (FAS) affects one-third of young offenders (NCPC, 1997).
A number of researchers found that violent offenders have distinct personality
traits that originate in early childhood, such as hyperactivity, impulsivity, poor
concentration, inability to defer gratification, and low empathy. Others have
found that these traits remain constant through to adulthood (Reiss, Roth, &
National Research Council [U.S.], 1993).1
Olweus's (2001) international study on bullying corroborates these studies.
He found that bullying behavior starts early and persists into adulthood.2 However, according to the NCPC (1997), the neurological effects of FAS, including
hyperactivity, disruptive behavior, and attention-deficit disorder (ADD), can
be offset by good nutrition and emotional support from adults. Furthermore,
studies reported by the NCPC found that reading to children at an early age
stimulates nerve and cell growth. Children who are malnourished at home can
be hospitalized and nurtured back to health (although the damage may not be
completely reversed). What is not known is whether children with these kinds
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of physical challenges engage in or perpetrate cyberbullying. This would be
an interesting study to undertake, given the numbers of youth from India and
China, some of whom experience malnutrition from poverty.
Another significant factor is genetics with a special focus on gender differences, which is the primary reason I have introduced biological considerations
in this chapter on home and gender. Given that, in general, boys tend to engage
in more aggressive forms of bullying and girls in more psychological and covert
forms, it is plausible that the differences might be due to genetics. It is noteworthy that psychological forms of bullying can equally aggressive, as seen
in studies reported later in this book. Some studies show that human aggression is biologically determined but that its influence on human behavior is
minimal.3 Boyd (2000), however, argues strongly that genetic factors in male
aggression cannot be discounted. He points to empirical evidence that the criminality of biological parents is more strongly correlated with crime in children
who were put up for adoption than with the criminality of parents who adopted
them.4
There is considerable research evidence that hormones play a role in influencing behavior.5 Boyd (2000) makes a case for testosterone as a critical factor
in male aggression. He traces the research on this all the way back to Aristotle,
who, 2,500 years ago, noted the physiological effects of castration on men.
While castration can have a social impact on men's behavior, approximately
100 years ago scientists determined that the internal secretions of the testes
also have a physiological effect on male aggression. D. H. Starling coined the
word "hormone" (which means "to set in motion") for the "chemical messages" that cause certain behaviors (ibid., p. 119).
Boyd refers to what criminologists call the "age-crime curve" (ibid., p. 121)
to support his claim that hormones are critical contributors to male aggression.
He observes that in the United States, Canada, and Britain, violent crime by
young men increases markedly around age fifteen, reaches a peak before age
twenty, and then declines by age of thirty. By age forty, it becomes a rarity.
Significantly, this pattern of male violence can be found in every nation for
which reliable evidence is available. According to Boyd (2000), the age-crime
curve for homicide in the United States, for example, is shaped like Mount
Everest. Significantly, although the curve in the United Kingdom is about one---
tenth the height of the U.S. curve, it is identical in shape. This might confirm
the prevalence of cyberbullying and, in particular, sexual and homophobic
harassment online, at adolescence, a topic to which I return later.
A number of studies (Artz, 1998; Boyd, 2000; DiGiulio, 2001; Lanctot, 2001)
indicate that both genders increase their violent behavior between Grades 5 and
10 or 11 (ages nine to fifteen or sixteen) around the first onset of puberty and
through to the midteens. Tolman, Spencer, Rosen-Reynoso, and Porches (2001)
report an increase in, for example, homophobic bullying and sexual harassment
among adolescent boys. They surveyed eighth-grade students (148 girls and 133
boys) in a suburban middle school serving working-and middle-class white and
Latino students. Students were asked to report the types and levels of sexual
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harassment they had experienced at the school. The researchers were struck by
how the teenagers' emerging sexuality and exploration of early romantic relationships pervaded the school environment. They heard how people "hooked
up" and "broke up" and how the boys watched each other "kicking g's" (kicking gays). They noticed that boys experienced tremendous pressure to publicly
demonstrate their heterosexuality to their male peers. This translated into making sexual comments about girls and their bodies, or acting in an overtly sexual
way in relation to girls. The researchers observed that
Participating in this form of sexual harassment, whether by making the comments or
colluding with boys who do, was not only normalized by the boys as simply part of being a boy, but an integral aspect of proving that they are not gay and therefore not subject to harassment themselves. Further, through listening to boys' and girls' descriptions of their experiences with harassment, alongside their experiences with early romantic relationships, sexual harassment in early adolescence began to sound like a "dress rehearsal"
of sorts for heterosexual relationships.
(Tolman et al., 2001, pp. 1--2; emphasis added)
They explained that sexual harassment is so normalized that both genders
often fail to report it. As I mentioned in my discussion of the statistics on
cyberbullying in Chapter 2, this is an important observation that researchers
could miss. This is why narrow definitions of "bullying" or "cyberbullying"
might miss important statistics on sexual, homophobic, or racial harassment,
or combinations of those forms, because the children being surveyed may not
consider them to fit within their understanding of bullying. An increase in the
prevalence of sexual bullying just before and during adolescence is definitely
corroborated in the research findings on cyberbullying presented earlier. The
Tolman study has important implications for the safety of both genders. The
more intense the pressure is on boys to prove they are not gay, the more girls
are subjected to sexual harassment. Boys perceived to be gay are also targets
for severe and persistent homophobic bullying.
Suicide and homicide rates are other indicators of the influence of testosterone. Before puberty, girls and boys have approximately equal rates of homicide and suicide (Boyd, 2000; DiGiulio, 2001). However, by age thirteen, male
rates of homicide and suicide are twice as high as female rates; by age sixteen,
male rates are four times as high, supporting Boyd's argument that genetics play
an important role:
Testosterone is inextricably tied to male sexuality, and the intensely sexual period of adolescence is when we all begin developing relationships. We are competing with our peers, advertently or inadvertently, for the attraction of potential sexual partners; we learn of betrayal, of unrequited love, and of love lost . . .
At any age problems with intimate relationships can produce conflict, hostility, and violence. But in adolescence, when testosterone is rushing about the testes, and young men are still on a learning curve, the potential for aggression and violence is at its apex. What happens when, in these circumstances, young men experience confusion, FOSTERING POSITIVE SCHOOL ENVIRONMENTS: PHYSICAL AND VIRTUAL
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misunderstanding, and disappointment? In the absence of corrective influences, it is not surprising that young men express anger, irritability, aggression and violence.
(Boyd, 2000, p. 137)
The rush of hormones in adolescence means the potential for aggression and
violence is at its apex. What happens when, in these circumstances, young men
experience confusion, misunderstanding, and disappointment? In the absence
of corrective influences, it is not surprising that young men express anger, irritability, aggression, and violence. Puberty and hormones might also have this
effect on girls, although less dramatically compared with the effects of testosterone on boys.6 Most serious cases of female bullying7 involve disputes about
relationships with boys that might also be influenced by hormones, as the girls
reach puberty and experience sexual arousal. It appears that biological influences might explain at least part of the equation. Consider now the environmental influences on bullying, which I believe have a significantly larger impact
on the persistence and extent of bullying and cyberbullying.
Society at large, the home, and the school are the principal environmental
influences on bullying. General attitudes toward violence in society may influence children to engage in bullying. For example, when adults model high levels
of tolerance for violence, children may decide that it is an acceptable form of
behavior, regardless of whether adults tell them it is wrong. Moreover, children
and adolescents internalize the violence they see in movies, on TV, and in music
videos and may regard it as socially acceptable.
Gender Socialization Begins at Home
Gender socialization also begins at home. Depending on whether young people are supported through dialogue and communication with parents, invested
in trusting relationships, and are happy and comfortable at home, the way in
which they are socialized also affects how young people might participate in
cyberbullying or adopt leadership roles in trying to prevent their peers from
engaging in it.
Environmental influences in the home, especially during early childhood and
adolescence, might account significantly for children's motivations to bully
(NCPC, 1997). When parents do not bond with their infants in a trusting
relationship, children cannot develop confidence to explore their social environment or develop autonomy and are motivated to seek power and validation
through aggression and bullying.8 A large body of literature establishes a correlation between early negative familial experiences and aggressive behavior
in children.9 The research confirms that child abuse in the home contributes
significantly to a range of negative consequences such as poor self-concept,
aggressive tendencies, alcohol and drug abuse, sexual promiscuity, and depression. Studies have also found, however, that a strong parent-child bond reduces
aggression in later life (Farrington et al., 1992, as cited in Hall, 1999; Nelson & Lewak, 1988). In the context of cyberspace, this could make the difference
between engaging in cyberbullying, accessing pornographic and hate sites, or
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making the decision to avoid those sites and stay away from peers who engage
in online harassment and insults.
Female Gender Roles
These findings are consistent with research on bullying showing that it begins
at an early age and that perpetrators and victims experience low self-esteem,
lack of confidence, and suicidal feelings. This does not, however, explain the
behavior of girls who also engage in aggressive physical bullying or persistent
and vicious cyberbullying. Some studies suggest that this tendency might have
something to do with the fathers. Artz (1998) reports interesting findings in a
study of physically aggressive girls from middle-class homes. She discovered that
girls with aggressive fathers tended to exhibit the level of aggression expected
of males. The girls also engaged in more typical female bullying techniques,
such as stalking or tricking others into meeting them in isolated places so that
they could beat them up.
In her interviews, Artz found that each girl who engaged in aggressive physical and covert psychological bullying had been sexually abused by either her
father or a male family member or male family friend. The girls were neglected
and received little support from their mothers, who were also dominated by
their spouses. To regain their sense of power, the girls blamed victims for breaking unwritten rules (e.g., calling them a "bitch" or "whore") or accused them
of stealing a boyfriend. In their minds, this justified the violence. Artz believes that the girls engaged in physical bullying to seek attention and admiration
from boys and to fill the void from lack of attention from their fathers. They
were also more sexually active than most girls their age.
Imagine the power that the anonymity of the Internet might provide to such
girls. Rumors and gossip in the physical or virtual school environment have been
identified as reasons for increased violence in a number of high-profile bullying
cases.10 In each case, the perpetrators spread rumors about the victim's attempts
to steal her boyfriend or spread the word that the victim had called a popular
girl a "bitch." Also in each case, the social group began to gossip and churn up
resentment against the victim. This method of bullying is covert because victims
do not have the opportunity to defend themselves but suffer the effects of the
lies and whispering about them. It results in isolation and ostracism, creating
the power imbalance that helps the perpetrators convince themselves that their
actions are justified.
One plausible explanation might be that girls, who may be more submissive
in face-to-face communications, may not feel so constrained by online communications. Their assertive online communication skills may lead to online
harassment. Ybarra and Mitchell (2004) found that youth who are victims
in offline environments are significantly more likely to harass others in online
environments (51 percent). This issue is further complicated by caregiver-child
relationships, delinquency, psychosocial challenges, and Internet use. Similarly,
Wolack, Mitchell, and Finkelhor (2003) found children who had high levels of conflict with parents and those who were highly troubled (with higher
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levels of depression and victimization or troubling life events) were more likely
to engage in close online relationships, increasing their vulnerability to online
exploitation.
Boyd (2000) has drawn our attention to environmental conditions that influence male biology toward aggression. One could reasonably assume, then, that
the way girls are socialized can promote psychological and covert forms of bullying. The social norm regarding girls is that they are more delicate than boys
and should express themselves verbally, rather than physically. It is regrettable,
but not surprising, then, that girls would use their verbal and social skills to
manipulate and isolate those they bully. An incidental finding of the Artz (1998)
study was that when asked what they would most like to do in the future, all
subjects answered that they wanted to be married and have children.
It is ironic that the traditional female role of home, marriage, and children
is so ingrained in the psyches of children, regardless of whether they are from
unhappy homes, that they have nonetheless been socialized to view marriage
and family as desirable goals. These findings are also interesting when juxtaposed with the online experiences of girls in North America, India, and Japan.
According to McMillin (2005) and Gregson (2005) online social networking
among girls in India and Japan in particular have helped them develop identities
that are both independent of their traditional domestic roles in the home but,
in many ways, also integral to those roles. The social networking sites have
provided these girls and women with the ability to interact with peers with
similar lived experiences and yet not come into conflict with family members
who do not like them to socialize outside of the home before they are married
(or even after they are married). The Internet has allowed them the freedom to
construct online identities that are significantly more confident. In a number of
cases, these identities have led to job opportunities outside the home that would
not have been available to them without those social networking sites. Consequently, it is important to appreciate the liberating role of social networking
sites, which researchers in India and Japan have found are used predominantly
by girls and women.
McMillin (2005) reports a study of computer use by teenage girls in
Bangalore, India. Only 30 percent of those surveyed responded (most likely
because many girls in India still do not have access to technology despite the
burgeoning IT industry in India). The author notes that e-mail and websurfing
for the teenage girls in India, although it was disclosed to be only a small part
of their leisure activities, was "an integral component of a matrix of rituals
of identity expression" (ibid., p. 175). McMillin observes that computer use
actually facilitated a continuation of their gender roles:
As a new media technology, the computer, with television, facilitated a continuation of their gendered roles as residents of the private, domestic sphere. Yet, through their Internet and email connections and their consumption of limited global products despite the dangers associated with them, they could cautiously explore new boundaries in virtual space. While the nation around them lumbered along according to a postcolonial 136
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clock that measured only the nation's backwardness and developmental lag as compared to industrialized metropolis, the teen girls in this study were right alongside their Western counterparts, communicating through email, surfing the Internet, and watching current news, fashions, music albums, and comedies in concurrent time. . . . With the increase in multinational corporations in Bangalore and more specifically, call centres, which are hungry for young, English-speaking, urban females fresh out of private, English-language high schools and colleges, the Indian teen may indeed be on the brink of discovering the Internet as a medium that transports her from private restrictions to public freedom. . . . Of course, IT-based call centers are themselves hierarchical and may replicate exploitative colonial regimes, yet it is evident that the Internet, coupled with television, will present a formidable influence in how the Indian teenage girl visualizes her urban, gendered and national identities and articulates her freedom and consuming agency.
(ibid.)
To avoid online harassment, girls in India use cyber cafes in groups because
have gained a reputation for being able to "safely" (ibid., p. 174) connect the
girls to public spaces. Although some of the girls admitted to using chat rooms
to keep in touch with friends, one of the girls, Swetha, a seventeen-year-old,
said she stayed away from these spaces:
I am not regular in chat rooms. I used to be when I was younger but now I know there's a lot of bullshit, lots of porn and cyber sex. You should be careful -- many girls go in (to chat rooms), then cyber sex things happen, then they get really depressed.
(ibid., p. 170)
In Japan, girls become particularly engaged in shoujo anime, where they
fall in love with animated online characters and participate in fan clubs in the
shoujo series. Gregson (2005) notes that girl fans of shoujo do not necessarily identify with the female lead characters. She notes that they do not engage with the characters because they want to see talented or sweet, kind girls become
heroines in the story. These girls use Web sites to talk about the boys they
like from their favorite anime stories and to put up pictures of those boys on
their Web site. Gregson suggests that the girls of shoujo anime have "moved their bedroom discussion to the Web" (ibid., p. 137). As with the teens from India, the Internet has become a safe haven within which they can try out
their independence online from the safety of their homes but engage in very
public discussions about topics they would never share in public offline. Hence
the anonymity of the Internet in some cultures provides a cocoon that allows
young women to engage more actively in a public sphere without giving up
their cultural ties and commitments to their families.
Male Gender Roles
It is also important to consider how men and boys are socially constructed
as perpetrators, and women as victims. Although there seem to be hundreds
of studies on female behavior online, there is a dearth of articles relating to
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137
males, with one or two exceptions. There is a need to understand the gendered
nature of the phenomenon. Adam (2002) contends that the ways in which
virtual and nonvirtual violations of the body enforce authority and reinforce
the submission of the victim cannot be discounted. I agree, especially as there is
also sufficient evidence in the research to suggest that homophobia directed at
male victims is prevalent on the Internet (Chu, 2005; Harmon, 2004; Leishman,
2002). However, to ignore the larger gender pattern associated with violence is
to miss a basic insight into the social reality of violence as a means of control
and intimidation. In other words, it tends to be perpetrated downward along
a power hierarchy, reinforcing societal gender inequalities (Herring, 2002).
An interesting article by Suler and Phillips (1998) investigated the ways in
which social hierarchies develop online communities such as the "Palace" (created by The Palace Incorporated [TPI] client and server programs), "Mansion,"
and "Welcome" (related chat rooms). Suler and Phillips observed that two factors shape the universal and specific forms of what they refer to as "deviant"
behavior within these communities. One is technical, and one is social. The
technical aspects play an important role because every chat community is built
on a unique software infrastructure that offers specific technical features for
how people experience the environment and interact with each other. They
suggest that no matter what technical features are offered, someone will find a
way to abuse them. Suler and Phillips explain that "if you build it, some will
exploit it" (ibid., p. 276). For example, "snerts" can use sounds and visual
images to harass others when these features are technically available in the chat
room.
They also note that social factors may be partially or completely independent
of the technical aspects of the environment, and this is because every culture
or subculture develops standards of acceptable or unacceptable behavior. They
reference theories of "cultural relativity" to explain that what is normative
behavior in one culture is not necessarily considered "normal" in others. Take
note that what may be considered normal or deviant within one chat-room
culture may not be perceived as deviant in another. Here are excerpts from
their description of the ways in which the anonymity of the chat rooms where
"avatars" (or different personas) are adopted reflect some of the participants'
deeper problems that emerge as a result of their earlier socialization:
Much has been said about how anonymity on the internet disinhibits people. Feeling
relatively safe with their real-world identity hidden, people say and do the things they otherwise would not normally say or do in the face-to-face world. Parks and Floyd explained this phenomenon in terms of the social context cues, theory and social presence theory. The absence of relational cues (visual, tactile, auditory) as well as physical proximity to another person may result in behavior that is nonconforming according to usual social norms. In some cases, that has a positive effect. People may be more honest, open, generous, and helpful. In other cases, however, the nasty side of a person gets unleashed, accompanied by a tendency to de-personalize others. Hence the snert. It is possible that the positive effects may outweigh the negative. In their research of Usenet 138
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newsgroups, Parks and Floyd were rather surprised that the deviant behavior was not as widespread as believed.
(ibid., p. 277)
As Suler and Phillips observe, not everyone wants to be totally invisible,
with no name, identity, presence, or interpersonal impact. They argue that
everyone wants and needs to express some aspect of who they are and to have those aspects acknowledged and reacted to. They suggest that anonymity on the Internet allows people to set aside some aspects of their identity to express
other aspects safely:
Snerts need someone to react to and affirm their offensive behavior. This need is a bit different than simply catharting their frustrated drives, as the "Eros-ridden" idea suggests. Snerts are trying to express some unresolved and warded-off feature of their troubled identity in an attempt to have it acknowledged. Unfortunately, they do it in a way that abuses other people. Under ideal conditions, they may be able to accept and work through those inner feelings and self-concepts that torture them. If not, they will continue to venture that ooze through their on-line snert identities, while safely dissociating it from their "real world" identity.
(ibid.)
They explain that instead of the anonymity releasing individuals' nasty side,
they may experience the lack of an identity as toxic. Consequently, they may
feel frustrated about not being identified or having a place in the group. This
may cause some "newbies" to act out their frustration in an antisocial manner
online. They need to feel that they have some kind of impact on others regardless
of whether it is negative or positive. This is similar to the child who acts out
when he or she wants attention and is being ignored, even if they know full
well that the attention might be in the form of scolding and punishment. They
note that humans predictably prefer to connect with others if the alternative
is no connection at all. Some snerts who join chat rooms may unconsciously
justify their misbehavior and blame the online community for taking away their
identity. In other words, they reject people because they feel rejected themselves.
If we consider this assessment of the reasons some teens may act out online in
chat rooms and even on social networking sites such as Facebook and MySpace,
it allows us to appreciate a need to address the reasons underlying that behavior and not the behavior itself. This certainly puts into perspective that some of the students who post negative comments about their teachers may realize it will be detected and may in fact be calling for attention from those particular
teachers.
Suler and Phillips also explain that although some studies suggest that girls
engage in more discriminatory exclusive forms of psychological violence than
boys, they seem to be outnumbered by males, who tend to engage in more sexual
and violent forms of bullying. They argue that when online, males -- especially
teenage males -- may "have a more difficult time restraining or constructively
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139
expressing their Eros-ridden nature -- i.e. they are not as mature" (ibid., p. 275).
However, there are also other early socialization factors that may be significant
here. In his book Real Boys, Pollack (1998) describes what he has learned after many years of working with boys who have severe emotional and behavioral problems. He explains that at birth, and for several months after, male infants
are more emotionally expressive than female infants, but by the time, they reach
elementary school, they tend to internalize most of their feelings -- a pattern that continues throughout their lives.
Pollack cites two reasons for this general trend. The first is the use of shame
in the "toughening-up" process as it applies to boys. Pollack notes:
Boys are made to feel shame over and over, in the midst of growing up, through what I call society's shame-hardening process. The idea is that a boy needs to be disciplined, toughened up, made to act like a "real man," be independent, keep the emotions in check. A boy is told that "big boys don't cry;" that he shouldn't be a "mama's boy." If these things aren't said directly, these messages dominate in subtle ways in how boys are treated -- and therefore how boys come to think of themselves. Shame is at the heart of how others behave toward boys on our playing fields, in schoolrooms, summer camps and in our homes.
(ibid., pp. 11--12)
The second reason, argues Pollack, is the separation of a boy from his mother
at an early age and then again in adolescence (coming out from "behind his
mother's skirt"). Pollack suggests that these separations are responsible for
boys' suppressing feelings, which surface as physical aggression when they reach
puberty. Pollack found that boys deal with their shame by suffering silently and
retreating behind the mask of masculinity -- and by failing to report bullying if
it happens to them. Consequently, it can be difficult for parents and teachers to
gauge what is really going on in young men's heads -- and whether they might
be either the victims of bullies or bullies themselves.
Another psychologist supports many of Pollack's observations. In a heart---
rending book titled Lost Boys, Garbarino (1999) reports on the early life experiences of several young American men, most of whom are on death row for murder. He explains that neglect and abuse of boys, combined with socialization that requires them to hide their emotions and maintain a tough exte---
rior, can have explosive results. He provides four reasons for male aggression:
Boys become hypersensitive to negative social cues. They may interpret non---
threatening glances or looks as threatening: "This one looked at me funny
yesterday . . . That one is bothering me . . . See that guy there? I think he's got a blade hidden" (p. 81). They also become oblivious to positive social cues. This
means that even when people are kind to them, they cannot remember; they
remember only negative social cues. They develop a repertory of aggressive
behaviors that are readily available and easily invoked to protect themselves
and prove that they are strong. Finally, they conclude that aggression is a successful way of getting what they want, and in the Internet likely provides the
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tools through which to obtain the power they need and the validation they
crave in their lives.
Given these research findings and the context behind sexual harassment,
whether online or offline, and the potential for gaining equality that cyberspace
provides for girls in some cultures, it is important to consider what the law says
about institutional responsibilities to provide discrimination-free environments.
Because we know that what takes place in the virtual world of children has
significant impact on their physical environment, it may be possible to extend
some of the human rights principles that have emerged in the jurisprudence to
cyberspace as a "virtual school environment."
HUMAN AND CIVIL RIGHTS JURISPRUDENCE: SCHOOL ENVIRONMENT
It may be some time before the Supreme Court of Canada rules on the censorship issues involved in cyberbullying because such cases are generally brought
under tort law for negligence and under human rights law. This does not suggest, however, that human rights considerations are not implied or expected. A
number of Canadian human rights cases on sexual harassment (e.g., Robichaud
v. Canada (Treasury Board), 1987) have ruled that institutions are responsible for providing safe environments for their employees even if the sexual harassment by a coworker occurs outside the workplace. The fact that the victims must face their tormentors in the workplace imposes an obligation on the employer
to address the problem effectively. This case is relevant to censorship of online
student expression because school officials often maintain that they are not
responsible for harassment by schoolmates that occurs virtually and outside
school hours. Yet as the high court confirmed in Robichaud v. Canada (Treasury Board) (1987), if the victim has to face the perpetrator within the institution, the institution is responsible for correcting the problem no matter where the harassment actually takes place. The high court reiterated that to meet the
broader objectives of human rights law (namely, to eradicate antisocial conditions in society), human rights law must be consistent with Charter principles.
Therefore, institutions must ensure that individuals have equal opportunities
to learn and work without fear of harassment. In this case, equal opportunity
to work or learn was at issue. Section 15 (1) of the Charter reads as follows:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(Canadian Charter of Rights and Freedoms, Schedule B,
Constitution Act, 1982, Canada Act, c. 11 [UK])
The high court also established in Ross v. New Brunswick School District
No. 15 (1996) that schools must provide conditions that are conducive to
FOSTERING POSITIVE SCHOOL ENVIRONMENTS: PHYSICAL AND VIRTUAL
141
learning. Although the Ross case involved the free speech of a teacher who distributed anti-Semitic publications outside of school, the following statement from the ruling has been quoted in almost every Charter argument for a positive
school environment:
[S]chools are an arena for the exchange of ideas and must, therefore, be premised upon principles of tolerance and impartiality so that all persons within the school environment feel equally free to participate. As the board of inquiry stated, a school board has a duty to maintain a positive school environment for all persons served by it.
(para. 42)
Even though Ross's anti-Semitic publications were distributed outside the
school context, the court noted that he poisoned the school and classroom
environment for his Jewish students within the classroom. They knew about
his publications and felt threatened, fearful, and uncomfortable. Hence, if we
are to draw on the rationale used in the Ross case, it would seem that the on-campus/off-campus (physical vs. virtual space) distinction is moot. It is the effect of the harassment, bullying, and threats -- despite the fact that they are made outside of the physical school setting -- that is important. If they prevent students from learning in the physical school setting, if they create a poisoned environment for any student, then it is the school's responsibility to step in and censor it.
In the case of Azmi Jubran ( Jubran v. North Vancouver School District
et al. , 2002; mentioned in Chapter 2), even though he was not gay, his appearance caused the majority of students in his class to tease him as being gay for the duration of his four years at Handsworth Secondary School in North Vancouver. The British Columbia Human Rights Tribunal ruled that the school had
created a negative school environment by failing to protect Jubran or discipline
the perpetrators. The tribunal ruled that they did an inadequate job of educating the students to be inclusive and socially responsible. Upon appeal by the
school board and the high school, the British Columbia Supreme Court adopted
a narrow construction of the case. The judge ruled that because the claim was
brought under Section 8 of the Human Rights Code (which protects homosexuals from harassment), and because Jubran claimed that he was not homosexual, he had no claim. Fortunately, the British Columbia Court of Appeal rendered a more thoughtful and practical ruling, overturning the Supreme Court decision and reinstating the tribunal decision. The court reiterated that Jubran had
every right to a claim against the school and school board because they fostered
and sustained a negative school environment in which he was prevented from
equal opportunities to an education free of discrimination and harassment (see
Shariff & Strong-Wilson, 2005).
A "deliberately dangerous" school environment was also the subject of a controversial landmark decision in 1998. The U.S. Supreme Court broke tradition
with avoiding the floodgates in the case of Davis v. Munroe (1998). The case involved persistent sexual harassment of a Grade 5 female student, Lashonda Davis, whose parents informed the teachers and the school principal numerous
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CONFRONTING CYBERBULLYING
times, but nothing was done to protect her. Lashonda's grades dropped, and her
health was negatively affected. In a majority 5--4 decision, the Supreme Court
ruled that in failing to act to protect Lashonda, the school had created a "deliberately dangerous environment" that prevented "equal opportunities for learning" ( Davis v. Munroe, 1998). It could plausibly be argued that cyberbullying (peer-to-peer and antiauthority) creates a similarly dangerous environment for victims in the physical school setting.
With all the attention paid to students' antiauthority cyber expression, the
foregoing court cases remind us that we should not overlook the fact that many
students experience cyberbullying on a daily basis. More important, educators
ought to be aware that it is their responsibility to ensure their lack of attention to it does not result in tacit condoning or the creation of a deliberately dangerous school environment for their students. I now report two recent North American
studies on the gendered nature and extent of cyberbullying in high schools and
also students' recognition that they would be happier if their teachers and school
administrators were kinder to them.
PEW INTERNET STUDY
The Pew Internet & American Life Project disclosed some interesting findings
(Lenhart, 2007). The study involved a nationally representative phone survey of
935 teenagers and found that one in three teens using the Internet experienced
online harassment. Not surprisingly, as with other studies, girls are more likely
to be the victims. What is different in this study is that most of the teens surveyed said they are more likely to be bullied offline than online. This is an important finding given the legal institutional obligation to ensure a school environment that is free of discrimination and bullying.
Lenhart also reports that about one-third (32 percent) of all American
teenagers who use the Internet say they have been targets of a range of annoying and potentially menacing online activities -- such as receiving threatening messages; having their private e-mails or text messages forwarded without
consent; having an embarrassing picture posted without permission; or having
rumors about them spread online. Older teens (aged fifteen to seventeen) said
they were more likely to have had someone forward or publicly post private
messages -- 18 percent of older teens have experienced this, compared with
11 percent of younger teens.
Two-thirds of all teens (67 percent) said that bullying and harassment happened more offline than online. Fewer than one in three teens (29 percent) said that they thought that bullying was more likely to happen online, and 3 percent said they thought it happened both online and offline equally. Girls were a bit
more likely than boys to say that bullying happens more online (33 percent
of girls vs. 25 percent of boys), although overall, both boys and girls say that
kids their age are more likely to be harassed offline. In focus groups conducted
FOSTERING POSITIVE SCHOOL ENVIRONMENTS: PHYSICAL AND VIRTUAL
143
by the project, one sixteen-year-old girl casually described how she and her
classmates bullied a fellow student:
There's this boy in my anatomy class who everybody hates. He's like the smart kid in class. Everybody's jealous. They all want to be smart. He always wants to work in our group and I hate it. And we started this thing, some girl in my class started this I Hate [Name] MySpace thing. So everybody in school goes on it to comment bad things about this boy.
(Lenhart, 2007, p. 2)
This corroborates the earlier British studies I reported in Chapter 2 in which students are often bullied because they are "smart" or perceived as too intelligent
(Boulton & Hawker, 1997).
Gender Differences
The Pew Internet & American Life Project also found that girls are more likely
than boys to say that they have ever experienced cyberbullying. Thirty-eight
percent of online girls reported being bullied, compared with 26 percent of
online boys. The study found that older girls are more likely to report being
bullied than any other age and gender group, with 41 percent of online girls aged
fifteen to seventeen reporting these experiences. Teens who use social network
sites such as MySpace and Facebook and who use the Internet daily are also
more likely to say that they have been cyberbullied. Nearly four in ten social
network users (39 percent) have been cyberbullied in some way, compared
with 22 percent of online teens who do not use social networks.
The Online Rumor Mill
The studies on gendered differences mentioned earlier in this chapter are corroborated by the Pew findings with respect to the online spreading of rumors. This
study found that at least 13 percent reported that someone had spread rumors
about them online. Girls are more likely to report someone spreading rumors
about them than boys, with 16 percent of girls reporting rumor-spreading compared with 9 percent of boys. Social network users are more likely than those
who do not use social networks to report that someone had spread a rumor
about them (16 percent vs. 8 percent). The report quotes one middle school girl
as saying:
I know a lot of times online someone will say something about one person and it'll
spread and then the next day in school, I know there's like one of my friends, something happened online and people started saying she said something that she never said, and the next day we came into school and no one would talk to her and everyone's ignoring her.
And she had no idea what was going on. Then someone sent her the whole conversation between these two people.
(Lenhart, 2007, p. 3)
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CONFRONTING CYBERBULLYING
Threats against Older Girls
As with the studies reported by Ybarra and Mitchell (2004) and Ybarra,
Mitchell, Finkelhor, and Wolak (2007), the Pew survey also found that at least
13 percent of the older girls had received threatening e-mails. The comments
of one fifteen-year-old boy are also pertinent to my earlier discussion of adolescents who are unaware of the line at which their pranks and jokes can be
perceived as real threats, causing their targets to become extremely frightened.
I played a prank on someone but it wasn't serious. . . . I told them I was going to come take them from their house and kill them and throw them in the woods. It's the best prank because it's like "oh my god, I'm calling the police" and I was like "I'm just kidding, I was just messing with you." She got so scared though.
(Lenhart, 2007, p. 3)
Why Teens Engage in CyberBullying
As part of their focus groups, the Pew researchers asked teens about online experiences they had with bullying and harassment. The students informed them that
adolescent cruelty had simply moved from the schoolyard, the locker room, the
bathroom wall, and the telephone onto the Internet. As I have reminded readers
throughout this book, cyberbullying is not much different from the adolescent cruelty that has always taken place -- including the graffiti on bathroom
walls about disliked peers and teachers. What changed is not the kids but the
medium. Therefore, we must be careful where we place the blame. As Lenhart
observes, the simplicity of being able to replicate and quickly transmit digital
content makes bullying quite easy. As one of the research subjects commented: "Just copy and paste whatever somebody says." Her middle school peer
warns:
You have to watch what you say. . . . If that person's at their house and if you say something about them and you don't know they're there or if you think that person's your friend and you trust them and you're like, "Oh, well, she's really being annoying," she could copy and paste and send it to [anyone].
(Lenhart, 2007, p. 5)
Another middle school girl describes how the manipulation of digital materials can be used to hurt someone. "Like I was in a fight with a girl and she
printed out our conversation, changed some things that I said, and brought it
into school, so I looked like a terrible person" (ibid.).
Interestingly, some of the teenagers felt that the mediated nature of the communication insulated teens from the consequences of their actions. One high
school boy responded to the question whether he had heard of cyberbullying:
"I've heard of it and experienced it. People think they are a million times stronger because they can hide behind their computer monitor. Also known as 'e-thugs.' Basically I just FOSTERING POSITIVE SCHOOL ENVIRONMENTS: PHYSICAL AND VIRTUAL
145
ignored the person and went along with my own civilized business." A middle school
girl described "stuff starting online for no reason."
(ibid., p. 5)
Homophobia
Some of the students in the focus group spoke about homophobia and intolerance as fueling cyberbullying. One middle school girl related witnessing the
following harassment: "I have this one friend and he's gay and his account got
hacked and someone put all these really homophobic stuff on there and posted
like a mass bulletin of like some guy with his head smashed open like run over
by a car. It was really gruesome and disgusting" (ibid., p. 5).
As Lenhart observes, bullying has entered the Digital Age; however, the
"impulses" behind it are the same. It is those impulses that we need to address
so that teens become more thoughtful about their actions.
MONTREAL RESEARCH
My own recent research in elementary and high schools in Montreal, Quebec,
Canada, where we surveyed students in Grades 6 through 9 (aged eleven to
fifteen years), corroborates many of the Lenhart findings, although the sample of students was smaller. We administered surveys to more than 500 students at four high schools and two elementary schools in the English Montreal School Board. Of these, 54 percent were male, and 46 percent were
female.
Of the students surveyed, 95 percent had Internet service in their homes,
and 5 percent did not. Surprisingly, only 37 percent owned a cellular phone,
and 63 percent did not. Table 5.1 shows the response of students to questions
regarding their experience of being cyberbullied or engaging with others on
cyberbullying. At first glance, these statistics do not seem disturbing given individual questions -- for example, the highest response was for "have you ever been
called a negative name or been harassed because of your physical appearance?"
However, 70 percent said "often" or "occasionally" to at least one question;
35 percent said "often" or "occasionally" to at least four questions; 16 percent
said "often" to at least one question; and 16 percent said "often" to at least
three questions. Because all the questions related to some form of racial, sexual, homophobic, or other threat, harassment, or insult, it can be concluded
that the percentages of students in this sampling experienced fairly high rates
of cyberbullying and, more significantly, that their school environments were
therefore more conducive to these forms of cyberbullying.
We also asked about their "alternative" online behaviors, such as taking on
different ages of personalities. We found that 43 percent admitted to having
pretended to be a different age online, and 22 percent have tried a different
personality. Again, what was most telling was that 58 percent of the students
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CONFRONTING CYBERBULLYING
table 5.1. Experience Being CyberBullied (Shariff, 2007b)
Often
Occasionally
Never
Called negative name or harassed because of
6%
28%
66%
physical appearance
Called a negative name or harassed because of
5%
27%
68%
ability
Called negative name or harassed because of
4%
16%
81%
clothing or dress
Been labeled as gay/lesbian even if not
4%
23%
73%
Been cyberbullied by a student who attends your
3%
12%
80%
school
Called a negative name or harassed because of
3%
9%
87%
disability
Continued to receive even when asked person to
3%
9%
89%
stop
Called a negative name or harassed because of
3%
9%
89%
ethnicity
Received a threatening message that made you
3%
8%
89%
afraid
Received angry, rude, or vulgar e-mail
3%
26%
72%
Discovered someone else had pretended to be you
2%
21%
77%
online
Received a threatening message from someone you
2%
12%
86%
do not know
Been deliberately excluded by others online
2%
10%
89%
Been put down harassed or targeted on a Web site
2%
7%
91%
Called negative name or harassed because of religion
2%
5%
93%
Had someone send or post personal information
2%
11%
88%
about you
Received a threatening message from someone at
2%
11%
87%
school
Been subjected to unwanted sexual suggestions
2%
5%
94%
Had anyone's sexually explicit pictures sent to you
1%
8%
90%
Called a negative name or harassed because of
1%
6%
93%
gender
Called a negative name or harassed because of
1%
2%
87%
sexual orientation
Were afraid to open e-mail or read cell phone
1%
5%
95%
messages for fear
Received angry, rude, or vulgar message via cell
1%
3%
96%
phone text messaging
said "yes" to at least one question and 14 percent said "yes" to at least four
questions. Other questions included the following:
r Have you tried to be older so that you can get into adult Web sites?
(15 percent said "yes")
FOSTERING POSITIVE SCHOOL ENVIRONMENTS: PHYSICAL AND VIRTUAL
147
r Do wild and crazy things you could never do in real life? (14 percent said
"yes")
r Have a different physical appearance? (13 percent said "yes")
r Act meanly as you never would face to face? (12 percent said "yes")
r Say hurtful things you would never say face to face? (10 percent said "yes")
r Take someone's name and pretend to be him or her? (9 percent said "yes")
(Shariff, 2007b)
The lower percentage rates for "act meanly as you never would face to face"
or "say hurtful things you would never say face to face" might be because popular discourse among adolescents in physical settings already contains expletives
and words such as "you're a hoe [whore]" and "I'll bust a cap in your ass" (I'll
shoot you) as part of the regular conversation when they are speaking among
themselves. As observed in Chapter 2, at the Jubran human rights tribunal, students testified that they often speak to friends this way. Therefore, when asked
a question about whether they might say mean things online, the responses are
lower because kids have a higher threshold for what they define as "mean"
things -- that is, it would have to be a really nasty remark to be meant hurtfully and hence the lower numbers of responses. This corroborates some of the
case examples I presented earlier from India, China, and Japan and later in this
book where I explain that young people do not realize when they are being
"mean" and find it hard to recognize the line at which their expression can be
hurtful.
I was particularly interested in analyzing the results of our survey because
the Lester B. Pearson School Board where we conducted our research has been
doing a considerable amount of work related to understanding cyberbullying.
I wanted to see whether the board's initiatives had made a difference. Accordingly, we simultaneously conducted twenty-seven adult interviews with teachers ( n = 18) and school administrators ( n = 9) and juxtaposed some of their answers with the results from the student surveys. Some of the students had given examples of the kinds of cyberbullying that were taking place:
r An eighth-grade boy randomly sent e-mails from the school computer lab
quoting a threatening line from a movie.
r Students told an elementary teacher that a student was writing bad things
about her online.
r A mother responded to inappropriate comments coming to her son online
by telling them they were behaving inappropriately. The students responded
rudely and inappropriately to her.
r A student repeatedly sent harassing audio messages to another student's email account.
r Two girls had a falling out, and one of them threatened to post some compromising pictures of the other on a Web site.
r A girl or a group of girls were insulting another girl on her own Web site.
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CONFRONTING CYBERBULLYING
Adult Perceptions
When asked whether they were aware of any children in the school receiving
threats or being harassed through electronic mediums, all nine school administrators said yes, but when the teachers were asked how informed they were
about the issue of cyberbullying, here are some of their responses (Shariff,
2007a):
r I can realize and conceptualize how easily it's done but no, I don't have a lot
of experience with it.
r It's hard for me to say if it goes on often, if they don't tell me.
r I don't think that they communicate that well to adults. Maybe out of
fear.
When asked where it starts, 63 percent of the students said it starts at school.
This is what the educators said:
r The monitoring of our computer labs is very strict; no one is allowed to use
the labs without supervision.
r A lot of those sites are blocked, so a lot of that stuff doesn't happen in the
school.
Opinions about CyberBullying
When asked their opinions about cyberbullying, the surveys revealed important
information. For example, 32 percent agreed or strongly agreed with the statement that online bullying can't hurt someone, "it is just words in cyberspace."
Moreover, 34 percent agreed or strongly agreed that it is a normal part of the
online world and no one can do anything to stop it. Paradoxically, 88 percent
agreed or strongly agreed with the statement that "People can be really hurt,
and I know some of them." These are high statistics that suggest students do
realize people can be hurt. When we see the examples of cyberbullying and
the typical forms of denial by students that they did not mean to hurt others
and were just "joking," there appears to be a dichotomy. This dichotomy is
complex and indicates the importance of educator awareness of the problem
and their increased attention to fostering a school environment that engages
students in the rule making. It also draws attention to the need for adults to
overcome their mindset toward the use of technologies and discover the educational potential of the Internet. I explain these and a range of other issues in
Chapter 7.
Further, 48 percent of respondents agreed or strongly agreed with the statement that it is the school's responsibility to stop online bullying. However, in
response to the statement, "If students bully each other at home, it is only
the parents' responsibility," 24 percent strongly agreed and 36 percent agreed
(60 percent).
Consider Figure 5.1. There is a clear difference of opinion between what
the students consider to be a matter of privacy to be dealt with by parents
FOSTERING POSITIVE SCHOOL ENVIRONMENTS: PHYSICAL AND VIRTUAL
149
What is the school'
s role?
Student Perspectives:
Sagree
Agree Disagree
Sdisagree
If students bully each other at home, the school has a
responsibility to stop it.
7%
2 1%
4 6%
26
%
It is the school's responsibility to stop on-line bullying.
15
%
3 3%
40
%
1 1%
If students bully each other at home, it is only the parents'
responsbility.
24
%
3 6%
34
%
7 %
If someone is being hurt on-line using the school network, the
school should be told.
53
%
3 5%
9 %
3 %
Sagree = strongly agree; Sdisagree = strongly disagree
Adult Perspectives:
Teachers
•It's our responsibility 100%.
Yes
•We do get involved. Even though parents say that's none of
No
I don't know
your business that didn't start here. As soon as the school
environment changes as soon as the child does not feel
safe in the environment and that their ability to learn is
Administrators
impeded. Our mandate is 100% for the safety and security
of the people in this building.
Yes
•This is such a new area and it's so fast and convenient and
No
I don't know
so blurry that I don't know that there's only one right answer
(...).
'b lurry'
' complicated'
' grey area '
' boundaries'
figure 5.1. What is the school's role? (Shariff, 2007c)
and what the school sees as its responsibility. Notably, 46 percent disagree and
26 percent strongly disagree (70 percent) with the statement that if students
bully each other at home, the school has a responsibility to stop it. Put simply,
students do not believe schools have a right to intervene when the expression
takes place on home computers. Paradoxically, 100 percent of the educators
interviewed stated they had a responsibility to intervene, even if it takes place at home. As I have already discussed, these are the differences of opinion that have
fueled the controversies among students, schools, and parents on the privacy
issues -- and boundaries of responsibility. The schools see it as a 100 percent
mandate to keep students safe.
These questions were designed to obtain some idea of students' and educators' understanding of civil rights on-and off-campus, in school, outside of
school, and in cyberspace. Although the students we interviewed did not seem
to think their rights were being infringed by school interference (which appears
to contradict the case examples involving student protests), the educators were
clearly upset with the general parental stance that schools have no right to
interfere when the expression occurs at home.
Significantly, in response to the statement "The solution to cyber bullying
lies with students because they know the online Web," 42 percent agreed, and
23 percent strongly agreed (65 percent).
Another important finding is students' response to the following statements:
"If adults treated young people more kindly students would treat each other
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CONFRONTING CYBERBULLYING
What about rights?
Student Perspectives:
Sagree
Agree
Disagree Sdisagree
I have the right to say anything I want on-line because of freedom
of expression.
10%
16%
37%
38%
Adults created the Internet, now they should live with the
consequences.
15%
19%
49%
18%
Adult's should stay out of young people's communication.
15%
20%
45%
19%
Sagree = strongly agree; Sdisagree = strongly disagree
Adult Perspectives: Relevancy of the charters
• They thought that I was invading their
children's privacy and actually rather than
appreciating my efforts I got an earful of you
Yes
No
know, 'what's it your business, or what are
I don't know
you doing?'
Administrator
Teachers & Administrators
figure 5.2. What about rights? (Shariff, 2007c)
the same way" (62 percent agreed or strongly agreed). Seventy-one percent said
they were less likely to bully if they were happy at school; 83 percent said, "I
would like to create a more kind and respectful world." Moreover, 81 percent
agreed or strongly agreed with the statement that cyberbullying is a worse
problem than it was the previous year; 72 percent would report it if they could
do so anonymously.
What did the school think about all this? One administrator chalked it up
simply to acknowledging that there is a "problem."
Well we tell, we educate them, we tell them what it is, but after that we have tell them . . . you can come and speak to us, we do have a program if you do, we do have a plan, if we do. But it's a matter . . . first of all acknowledging there is a problem, educating the kids as to what it is, and then making sure those kids feel comfortable telling staff and admin[istration] about what is going on. But [the problem] is so new to them and so new to us.
(Shariff, 2007c)
This response demonstrates the lack of confidence in many school administrators -- the uncertainty with which they approach the issues, which might
sensitize the students to the fact that their administrators and teachers simply
don't know what to do. However, the students have made it clear that if they
were in a school environment where the adults were kinder to them, where
they could be kinder to others, and where they were happy, there might be less
FOSTERING POSITIVE SCHOOL ENVIRONMENTS: PHYSICAL AND VIRTUAL
151
table 5.2. Would I Report It? (Shariff, 2007c)
Yes
No
Blank
If you were a victim would you:
Tell your parents or guardian about it
66%
25%
8%
Tell your friends about it
65%
26%
9%
Report it to your teacher, principal, or
51%
41%
9%
school counselor
Report it to the police
23%
62%
9%
Keep it to myself and not tell anyone
12%
76%
12%
If you witnessed cyberbullying taking place
and a student was being hurt, would you:
Report it to your teacher, principal, or
58%
30%
13%
school counselor
Tell your parents or guardian about it
44%
41%
14%
Tell your friends about it
58%
27%
15%
Report it to the police
21%
79%
20%
Keep it to yourself and not tell anyone
11%
71%
18%
Strongly
Strongly
Agree
Agree
Disagree
Disagree
I would report cyberbullying if I could
32%
40%
21%
7%
do it anonymously
bullying. There is certainly a will on the part of young people not to engage in
bullying, and as we will see in the next chapter, this largely depends on the environment that the school creates through policy responses -- whether welcoming
or autocratic.
I now highlight one more finding from the Quebec research. An important part of a welcoming school environment is the confidence with which
students feel they can report bullying or cyberbullying. Table 5.2 reports the
findings.
Even though 66 percent would report bullying or cyberbullying to their
parents, and 58 percent would report it to their teacher, principal, or school
counselor if someone was being hurt, it is disturbing to see that 30 percent said
they would not report it to school officials even if someone was being hurt.
Moreover, 40 percent would only report it if they could do it anonymously.
Administrators always talk about dependence on a plan or program. What
they lose sight of is that sometimes it is not necessary to have a plan. It is
simply important, as this administrator said, to acknowledge that there might
be a problem. In doing so, it is critical to realize that communication with
students is a two-way endeavor. Teachers and school officials must begin to
recognize that they may be contributing to the problem. If this is the case, no
program will fix it until adults acknowledge their contribution to the problem
and work to change it.
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CONFRONTING CYBERBULLYING
Consider once again the example of Bram, who made sexual jokes online
about his teacher. On a CBC Radio talk show, Bram confessed to the radio interviewer that he still attends the teacher's class, but neither of them speak to each other or look at each other. This likely results in tensions that other students
feel strongly. Unspoken anger can fester and poison the classroom environment. Leaving things suspended in an uncomfortable climate after an incident
has been reported and publicized without talking about it and acknowledging at
in class does not get to the root of the attention-seeking behavior. Even though
students claim that they consider Facebook to be private, the demeaning comments are in and of themselves attention seeking. Pupils might be interested in
having only their peers read their concerns (as expressed jokingly), but in cases
in which they are sufficiently angry at their teachers, they may subconsciously
want that message to reach the teachers in an indirect way, just as the unruly
child behaves badly to get any kind of attention, even if it involves punishment
(Suler & Phillips, 1998). This cathartic expression empowers students, making
up for inadequate feelings they might experience in their relationships with certain teachers. One extreme example is that of Kimveer Gill. Kimveer Gill had
been posting photographs of himself with enormous firearms on a grunge Web
site only days before September 13, 2006, when he walked into Dawson College in the heart of Montreal in broad daylight and started shooting randomly
at students. It was later determined that Gill had been bullied as a student.
Regrettably, those who saw the photographs did not take them seriously or
realize that this was a desperate call for help. Gill killed one girl and seriously injured several students before shooting himself and then being shot to death
by police in the school cafeteria.
ARE CHILD PROTECTION LAWS RELEVANT TO CYBERBULLYING?
As I mentioned in earlier chapters, teachers and school officials have generally
been reluctant to intervene when peer bullying or cyberbullying is involved for
various reasons, yet they do not hesitate to call for legal action when they themselves become the targets. When it comes to fostering a positive school environment where all children feel welcome, a number of scholars have argued that
the human rights obligation, as well as tort law, duty of care goes hand in hand
with an obligation to protect children from child abuse. In this regard, Professor William Foster (1991) of Canada and Jean Healey (2005) of Australia have
both suggested that child protection legislation ought to be applied to bullying
in schools. Both scholars argue that if schools are not doing an adequate job
of protecting victims of bullying from abuse by their peers, they might be more
responsive and diligent if they are required to report it as they are required to
report suspected cases of adult against child abuse under child protection laws.
Healey reports close correlations in the research on the detrimental psychological impact of child abuse and bullying, such a long-term depression, lowered
grades, physical illness, loss of confidence, and so on. Healey describes a serious FOSTERING POSITIVE SCHOOL ENVIRONMENTS: PHYSICAL AND VIRTUAL
153
case of physical bullying that went to litigation, which she believes might have
been handled differently had there been applicable child abuse legislation specifically related to bullying. The claimant in this case had been severely abused by
peers on numerous occasions, often resulting in physical harm. He was systematically and psychologically abused throughout his high school education. He
was thrown against a wall, causing a concussion, and had garbage forced into
his mouth. He was pushed to the ground on three separate occasions, resulting
in hospitalization during some of these incidents. He had a seizure at school
following one such incident; however, school officials continuously described
his involvement as "fighting" despite consistent reports that he was a quiet and
compliant student with a minor speech impediment who was picked on. Teachers continuously failed to identify the incidents as abusive, seeing each incident
as a separate fight rather than a chain of persistent and deliberate assaults.
The case was settled out of court; however, Healey observes that had the
1998 child protection legislative provisions been in place, the school could
have been required to report every incident of abuse, triggering a range of
protective responses. She reports that child abuse issues were afforded a high
profile in New South Wales schools in the wake of the Wood Royal Commission
of 1996 that resulted in a 1997 report implicating a number of educators in
child abuse matters. This resulted in prosecution and incarceration for some
educators on the basis of failure to notify suspected cases of abuse of children
and young people in their care. In 1998, the New South Wales Department
of Education instituted a review of procedures for reporting child abuse. This
extended regulations that previously applied only to sexual abuse notifications
to require that all suspected or reported forms of abuse involving young people
be appropriately notified. This was in response to a review of the Children
(Care and Protection) Act, 1987.
In Canada, similar concerns arose in the early 1990s that linked the failure
of schools to report suspected child abuse. Foster (1991), like Healey, suggested
that child abuse legislation across Canada should be extended to cover bullying,
subsequent to the murder of Reena Virk in British Columbia and the suicide
deaths of Hamed Nastoh and Dawn Marie Wesley from being bullied. Foster,
however, observed that child abuse legislation across Canadian provinces was
inconsistent. The age of protection varied from province to province: reporting requirements, procedures for investigation and follow-up, and training of
teachers were largely dependent on the province in which an event occurred.
This made it difficult to confirm consistent standards for child protection across
Canada.
Although suggestions to apply child abuse legislation in severe and persistent cases of bullying have not been taken up, at least in Canada, they are
important considerations in the cyberbullying context. As I have explained,
cyberbullying spills over into the physical school environment and vice versa;
and the abuse can be magnified because the extension into cyberspace allows
the perpetrators to abuse the victim twenty-four hours a day -- he or she can
never escape it. Given that schools not only have an institutional responsibility
154
CONFRONTING CYBERBULLYING
under the human rights jurisprudence highlighted in this chapter to foster and
sustain positive learning environments, they are also required to do so under
the provisions of the International Convention of the Rights of the Child to
protect, provide for, and engage (allow participation) all children in their learning. Dismissing extreme forms of peer-bullying, whether it is cyberbullying,
physical bullying, psychological bullying, or all of these as simply "fighting" or
"part of growing up" should no longer be an option for teachers or school officials. We know too much about the detrimental effects of bullying in any of its
forms. As Healey suggests, although there may be various objections raised to
the reporting bullying as a form of child abuse, there is a professional obligation to do so:
A range of ethical and professional issues can be identified as discouraging the use of the legislation for the purpose of reporting peer abuse, yet it must be noted that reticence to offer this form of protection to children who are abused by peers is professionally questionable. A case can be made for the inclusion of peer abuse under the scope of child protection legislation in order to provide appropriate and immediate intervention for victims and professional protections for teachers, but further professional preparation is necessary to ensure implementation as well as a genuine commitment to the reduction of peer abuse in school settings. Specific and community-endorsed provisions already exist for the protection of children and young people from abuse, so the proposal that this should be applied in the case of peer abuse should not be too challenging, given the impact of peer abuse. The protection and safety of students in relation to their peers must be paramount and legally supported.
(Healey, 2005, p. 66)
However, Healey also acknowledges a downside that could result in continued underreporting. This involves teachers' perception that their professional
autonomy is being censored:
Fundamental to the concept of "professionalism" are notions of specialized knowledge, ethical standards and practice and autonomy. In acquiring professional qualifications and recognition practitioners across all fields have the expectation that the judgments and decisions they make under these auspices have been pre-validated. The ethics and standards proclamation of a variety of professions involved in child protection delin-eate strict expectations for the maintenance of privacy, and adherence to protective organizational procedure. These have been devised to ensure that within this framework the decisions taken will be legitimate, have positive outcomes for clients, and not be unnecessarily restrictive. For some individuals however, mandatory notification poses a significant challenge to their professional self-regard and indeed evidence is emerging that the removal of discretionary reporting has resulted in underreporting.
(pp. 66--67)
The fact that scholars see the extension of child abuse legislation to bullying in
schools is important and worth consideration as one possible way to increase
teachers' appropriate attention to and focus on the problem. Regardless of the
fact that some teachers may underreport, it is likely that at least some of the
a
to
or
harass
that
create
schools
reports
bullying
they
environment
there
the
more
school
the
Students
they
their
ignored
,
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cyberbullying
physical)
and
for
when
from
or
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school
that
taken
because
a
they
and
if
that
learning
expect
be
be
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know
cyberbully
bullying
teachers
Standards
Know
or
poisoned
(virtual
affects
Could
protection
and
of
would
seriously
would
the
officials
tacitly
is
of
their
of
their
their
of
to
Parents
that
free
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expect
on
parents
for
rights
to
act
protect
aware
s
an
could
to
to
be
in
extended,
Standards
Must
children'
learn
environment
discrimination
conducive
If
victims
schools
reports
children
s
each
for
require
eachers
with
T
dangerous
or
rights
peer
to
bullying
for
children'
would
of
report
avoid
this
occurred
to
to
cyberbullying
it
consequences
extended
Standards
Duty
"deliberately
environment"
"poisoned
environment";
encourage
participation
If
abuse,
reporting
and
time
legal
failure
&
and
abuse,
for
with
the
to
or
dangerous
or
Convention
of
peer
to
bullying
follow-up,
for
environment"
Provision
require
of
report
avoid
training
entitled
to
up
to
Rights
--
would
staff
consequences
the
extended
Standards
Administrators
Duty
"deliberately
environment"
"poisoned
International
of
Child
Protection,
Participation
If
this
reporting
cyberbullying,
investigation,
monitoring,
and
legal
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follow
Standards
al
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civil
youth
laws
or
5.3.
Framework
laws
and
table
Legal
Human
rights
(institutional
responsibility)
Child
protection
155
156
FOSTERING POSITIVE SCHOOL ENVIRONMENTS: PHYSICAL AND VIRTUAL
serious cases of peer bullying and cyberbullying may receive the attention they
need sooner than later, saving lives and reducing negative impact on the children
and the school environment.
The legal standards relating to the responsibility to provide a school environment that is free of discrimination and conducive to learning are summarized
in Table 5.3.
To engage usefully the legal standards regarding the legal responsibilities
of educators as they extend to a virtual school environment, we also need
a frame of reference that informs us about how the rules of the game are
and ought to be defined in real space. It is in our physical space that power relations among stakeholders are established. Once we understand the levels of power stakeholders wield in physical settings that shape the rules of conduct,
discourse, and learning, it will be easier to appreciate why certain stakeholders
such as teachers and their unions are most vocally opposed to the emerging
rules of knowledge in cyberspace. The power struggles are not limited to federal
and local imbalances; they are further complicated by the power agendas and
desire for agency in shaping learning. This is because learning ultimately affects the normative societal hegemonies that have in the past successfully sustained curricula of orthodoxy in schools.
In the next chapter, I present examples of new and proposed international
legislation that demonstrates how new technologies bring enormous challenges
to stakeholders who are comfortable with controlling and limiting children's
ideas, spaces, and learning opportunities. Ultimately, banning resources that
limit what students hear, learn, explore, express, and absorb is what results
in negative, antiauthority, and discriminatory forms of expression that are the
objects of control in the first place.
REFERENCES
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Artz, S. (1998). Where have all the school girls gone? Violent girls in the school yard.
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Boulton, M., & Hawker, D. (1997). Verbal bullying: The myth of "sticks and stones." In D. Tattum & G. Herbert (Eds.), Bullying: Home, school and community (pp. 53--63).
London: David Fulton.
Boyd, N. (2000). The beast within: Why men are violent. Vancouver, Canada: Greystone Books.
Canadian Charter of Rights and Freedoms, Schedule B, Constitution Act, 1982, Canada Act, c. 11 (UK).
Chu, J. (2005, August 8). You wanna take this online? Cyberspace is the 21st century bully's playground where girls play rougher than boys. Time, Canadian Edition, 42-- 43.
DiGiulio, R. C. (2001). Educate, mediate, or litigate? What teachers, parents, and administrators must do about student behavior. Thousand Oaks, CA: Corwin Press.
Foster, W. F. (1991). Child abuse in schools: The statutory and common law obligations of educators. Education & Law Journal, 4, 1--59.
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Garbarino, J. (1999). Lost boys: Why our sons turn violent and how we can save them.
New York: Free Press.
Gregson, K. S. (2005). What if the lead character looks like me? Girl fans of Shoujo anime and their Web sites. In S. R. Mazzarella (Ed.), Girl wide web: Girls, the Internet and the negotiation of identity. New York: Peter Lang.
Hall, M. T. (1999). Administrative discretion and youth violence in schools: An analysis.
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Harmon, A. (2004, August 24). Internet gives teenage bullies weapons to wound from
afar [Electronic version]. New York Times. Retrieved August 26, 2004, from http://
www.nytimes.com/2004/08/26/education.
Healey, J. B. (2005). Peer abuse as a legislated child protection issue for schools. Australia
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Herring, S. C. (2002). Cyberviolence: Recognizing and resisting abuse in online environments. Asian Women, 14, 187--212.
Lanctot, N. (2001). Violence among females from adolescence to adulthood: Results from a longitudinal study. Paper presented at the Vancouver Conference on Aggressive and Violent Girls. Simon Fraser University, Vancouver, Canada.
Leishman, J. (2002, October 10). Cyberbullying: The Internet is the latest weapon in a bully's arsenal [Electronic version]. CBC News. The National. Retrieved January 27, 2003, from http://cbc.ca/news/national/news/cyberbullying/index.html.
Lenhart, A. (2007, June 27). Data memo [Electronic version]. Pew Internet & American Life Project. Retrieved August 14, 2007, from http://www.pewinternet.org/pdfs/
PIP%20Cyberbullying%20Memo.pdf.
McMillin, D. C. (2005). Teen crossings: Emerging cyberpublics in India. In S. R. Mazzarella (Ed.), Girl wide web: Girls, the Internet, and the negotiation of identity (pp. 161--178). New York: Peter Lang.
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Olweus, D. (2001). Peer harassment: A critical analysis and some important issues (Introduction). In J. Juvonen & S. Graham (Eds.), Peer harassment in school: The plight of the vulnerable and victimized (pp. 3--20). New York: Guildford Press.
Pollack, W. (1998). Real boys. Markham, Canada: Fitzhenry & Whiteside.
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Shariff, S. (2000). Identifying successful school and community programs for youth: An evaluation rubric and compendium of sources. A research project of Youth Justice Education Partnerships supported by Justice Canada [Electronic version]. Retrieved July 23, 2005, from http://www.acjnet.ca.
Shariff, S. (2001). E-mail from "Raveger, Raveger." In Legal Context of Education, EDUC 445. Course Study Guide. Burnaby, BC: Centre for Distance Education, Simon Fraser University.
Shariff, S. (2006). Cyber-Hierarchies: A new arsenal of weapons for gendered violence in schools. In C. Mitchell & F. Leech (Eds.), Combating gender violence in and around schools (pp. 33--41). London: Trentham Books.
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on cyberbullying, funded by Social Science and Humanities Research Council of
Canada (SSHRC). Shaheen Shariff, McGill University, Principal Investigator.
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Shariff, S. (2007c). What's the school's role? What about rights? and would you report it? Data compiled by research assistants Andrew Churchill, Julie d'Eon, and Tomoya Tsutsumi. Tables and figures prepared by Andrew Churchill. Unpublished research
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McGill University, Principal Investigator.
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Shariff, S., & Strong-Wilson, T. (2005). Bullying and new technologies: What can teachers do to foster socially responsible discourse in the physical and virtual school environments? In J. Kincheloe (Ed.), Classroom teaching: An introduction (pp. 219-- 240), New York: Peter Lang.
Suler, J. R., & Phillips, W. L. (1998). The bad boys of cyberspace: Deviant behavior in a multimedia chat community. Cyberpsychology & Behavior, 1, 275--294.
Tolman, D. L., Spencer, R., Rosen-Reynoso, M., & Porches, M. (2001). "He's the man!"
Gender ideologies and early adolescents' experiences with sexual harassment. Paper presented at the American Educational Researchers Association (AERA) Conference, Seattle WA.
Wolak, J., Mitchell, K. J., & Finkelhor, D. (2003). Escaping or connecting? Characteristics of youth who form close online relationships. Journal of Adolescence, 26, 105--119.
Ybarra, M. L., & Mitchell, K. J. K. (2004). Online aggressor/targets, aggressors and targets: A comparison of associated youth characteristics. Journal of Child Psychology and Psychiatry, 45, 1308--1316.
Ybarra, M. L., Mitchell, K. J. K., Finkelhor, D., & Wolak, J. (2007). Internet prevention messages: Targeting the right online behaviors. Archives of Pediatric and Adolescent Medicine, 161(2), 138--145.
Censoring Cyberspace: Can Kids Be Controlled?
Bullying using a new information technology . . . gives kids way more power than
they've had.
(School superintendent Anne Kerr, as quoted in Girard & Nguyen, 2007)
School authorities look for ways to control online expression that defames or
insults peers and teachers, believing it has become completely out of control. Is
this really the case? Why is there such a fear among school officials that information technologies give students too much power? This chapter looks at ways
in which school stakeholders influence the development and implementation
of censorship laws that are designed to control not only what students express
but also what they learn on a regular basis. The concern among school officials
that information technology gives students too much power is grounded in the
fear that technology can also change knowledge production and control of that knowledge production. As a result, the normative role of schools is challenged and compromised. Consequently, educators look for legal options grounded
in positivistic responses, such as criminal law, legislation that forces schools
and libraries to filter certain programs (Deleting Online Predators Act, 2006),
and zero-tolerance policies rooted in military models of discipline (Skiba &
Peterson, 1999). Yet as we have seen in earlier chapters, students are raising
substantive legal defenses, grounded in fundamental principles of justice.
In my book with Leanne Johnny (Shariff & Johnny, 2007), I highlighted
ways in which various stakeholders from school communities, such as school
officials, teachers, parents, and special interest groups, have always engaged in
positivist forms of censorship to shape and sustain a curriculum of orthodoxy
that conforms to normative standards and expectations (see also Shariff &
Manley-Casimir, 1999). Any changes to the status quo that threaten to shake
the foundations of power in schools and place it in the hands of less powerful
stakeholders are generally seen as a threat that must be quelled.
159
160
CONFRONTING CYBERBULLYING
The quote at the beginning of this chapter, from a school superintendent
(Girard & Nguyen, 2007), confirms the kind of adult mindset that Lankshear
and Knobel (2006) explain, which limits adult understandings of digital literacies and their enormous potential for education. The concern about too much power in the hands of children reflects the reality that we have rarely empowered children in educational contexts. Many countries have treaty agreements under the United Nations International Convention of the Rights of the Child
(United Nations, 1989) in which commitments have been made to ensure the
"three Ps" -- protection, provision, and participation of children. Under the
treaty, a report must be filed with the United Nations every four years. The
last report filed by Canada received good grades for protection and provision
but did not do as well in the participation category, especially as reported by
schools (Howe & Covell, 2000).
Allowing students to participate or engage in their learning requires a conscious effort on the part of teachers and school administrators to give them
responsibility, hold them accountable for their actions, and use technologies
to engage in learning through making positive social contributions. As I show
in Chapter 8, this is not difficult to implement once educators put their minds
to it.
In Chapters 3 and 4, I discussed cases of cyber libel that suggest there is a
definite line -- fine though it is -- between unfettered free expression and the
point at which it moves to become criminal harassment, defamation, or libel.
The onus is on the plaintiff to establish that his or her professional reputation was so negatively affected by the speech, that remedies or some form of
compensation is due to them. This establishes that the perpetrators ought to
be disciplined for their misconduct in some way. An alternate approach on the
part of educators might be to teach young people what that line is and help
them to understand through dialogue and engagement with technologies why
certain forms of expression can be so damaging to an individual's reputation.
As we saw in Chapter 4, lewd or obscene expression can be allowed if it
is making a political statement or stating a legitimate opinion about an issue.
This raises interesting questions about how student online statements about a
teacher's hygiene or didactic and autocratic teaching style might be handled.
In a couple of Canadian cases, students were suspended for basically stating
the truth. The teachers they mentioned did have autocratic teaching styles; one
teacher did need to take a shower, and another who was described as a lesbian
was indeed an "out" lesbian. In Canada, a claim for infringement of freedom of
expression by suspended students in this situation might go two ways. Canadian
courts, as noted in Chapter 3, have stated that a teacher's reputation is just as
important, if not more so, than free speech. On the other hand, based on Lutes
( Lutes v. Board of Education of Prairie View School Division No. 74, 1992), free speech, as in the U.S. case involving A. B. ( A. B. v. State of Indiana, 2007) is acceptable even if lewd and obscene as long as it is stating opinion or making a point. The onus would then be on the teachers to show damage to their
reputations. However, if the speech is simply made for the purpose of harassing
CENSORING CYBERSPACE: CAN KIDS BE CONTROLLED?
161
someone and ruining his or her reputation or if it materially and substantively
affects learning, or if it goes against the educational mission of the school, then schools are justified when they intervene.
The right to intervene is less of an issue than how they choose to intervene. As we saw in Chapter 5, the onus rests on schools to ensure that the illegitimate forms of harassment grounded in sexual and homophobic discrimination or
racial prejudices do not contaminate or poison the school environment. Again,
this connotes responsibilities on the part of educators to do what they are professionally supposedly trained to do, to educate students to engage in socially
responsible discourse. However, as I argue in this chapter, professional development programs for teachers and school administrators do not prepare them
to address these issues. Few teachers or school administrators know what the
limits of free speech are without reading and analyzing some of the judicial
decisions we have reviewed in this book -- to recognize the fine line at which
such expressions contravene the law. To understand these concepts, it is necessary to have some exposure and experience with a reasoning process. Learning
about one's rights and responsibilities takes time. Often, educators complain
that there is no time; accordingly, they are forced to make arbitrary and reactive
decisions. In Chapter 8 I suggest ways that teacher education and professional
development can be improved to address these gaps toward ultimately developing nonarbitrary and thoughtful policies regarding cyberbullying.
In the meantime, the knee-jerk response of teachers' unions, school, and governmental offices involves calls for action reminiscent of military calls to arms
to forge into battle against young upstarts who wage a war using lewd and
obscene language on the Internet. Moreover, as the headlines I cited in Chapter 1 disclose, the news media has pounced on this response to sensationalize
reactions by labeling them "battles" and "wars." What is more, news headlines
and stories are framed in such a way as to convince the public that kids are out
of control and that technologies are to be blamed (Edwards, 2005). A misconception among some stakeholders is that it is possible to "ban" and filter these
technologies to control them. We saw earlier that a sixteen-year-old cracked
the Australian government's $84 million computer program, in minutes. The
filter had been designed to control social networking sites and chat rooms.
TEACHERS SHAPE LAW AND SOMETIMES IMPEDE LEARNING
Under this controversial heading, I look at the role of teachers as influential
stakeholders. I am disturbed by the strong reaction to antiauthority forms of
expression teachers have taken up globally, compared with their relative lack
of attention to peer-to-peer bullying and cyberbullying. The latter forms of
bullying have taken place for many years, as described in Chapter 2. The general response of teachers to peer cyberbullying is that it is not their place to
get involved in online expression that takes place from home computers, off
school grounds. Research shows (S. Shariff, 2003) that teachers believe parents
162
CONFRONTING CYBERBULLYING
table 6.1. Teachers on the Experience of CyberBullying
Definitely Experienced
Definitely Not
Yourself personally
4.7
84
3
3
2
5
4
Other teachers or
3.7
41
16
11
9
12
11
administrators
in your school
Your students
3.3
33
11
14
12
18
11
Students in your school
2.7
16
13
19
17
25
10
Reproduced with permission of the Ontario College of Teachers (2007).
ought to be responsible for their children's conduct at home. Again, this might
have something to do with the lack of professional development and teacher
education programs to address these emerging issues. Nonetheless, the current
reaction to online antiauthority forms of cyber expression (described as cyberbullying by teachers and the media) reflect the double standards in the form
and speed of responses when the tables are turned and teachers become targets.
This makes one wonder about how teachers are implementing their common---
law duty of care, in loco parentis, to protect and educate their students about civil responsibility. One recent study, however, disclosed that teachers might have cause for concern about antiauthority cyberbullying. Despite the high
statistics found, I maintain that double standards exist.
Teachers as Targets
The Ontario College of Teachers (OCT, 2007) recently publicized a study
reporting shocking results from a teacher's perspective. The study revealed
that 84 percent of respondent teachers report have experienced antiauthority
forms of cyberbullying in the form of obscene or defamatory student online
statements; 41 percent know about this happening to other teachers; 33 percent
report knowing about it happening to their own students, and 16 percent know
about it happening to students at their school. Here are some excerpts from the
study:
Question: As you know, there's been some talk in the media about cyberbullying, where students publish obscene or defamatory pictures or statements online for the purpose of hurting others. To what extent has each of the following experienced cyberbullying?
Table 6.1 provides responses to this question.
Forty-five percent said this happened by e-mail, and 44 percent said this
happens on chat rooms, social networking sites, and "bashboards." Thirty---
two percent found defamatory content on personal Web sites and blogs, 31
percent via text messaging, 19 percent through the use of photographs and
video clips, and 15 percent on personal voting-booth Web sites.
CENSORING CYBERSPACE: CAN KIDS BE CONTROLLED?
163
Question: In what form have those incidents of cyberbullying typically occurred?
A. e-mail
B.
chat room or
bashboard content
C. content on
personal Web sites
B 44%
or blogs
A 45%
D. text messaging
C 32%
E. photographs or
DNK
video clips
26%
F. personal voting-
D 31%
F 15%
booth Web sites
E 19%
DNK (do not know/no
opinion)
figure 6.1. Typical forms of cyberbullying. Reproduced with permission from the
Ontario College of Teachers (2007).
See Figure 6.1. The teachers considered criticism of their clothing, appearance, and mannerisms, as well as of their grading practices, as the most serious
forms of antiauthority online expression. When asked whether they believed
such activities contribute to teachers leaving the profession prematurely, 19
percent of those surveyed believed it did. Twenty-one percent of the teachers
thought this also contributed to students dropping out of school, whereas 24
percent believed cyberbullying affected student dropout rates. Twenty-four
percent felt it decreased classroom quality (because of the spill-over effect into
physical spaces).
Question: Which of the following best describes your school's position on cyberbullying?
A. There are
formal, well
understood rules
with potential
DNK 10%
A 37%
consequences.
B. There may be
D 10%
formal rules but
they are not
widely
C 16%
B 27%
understood.
C. There are
informal rules.
D. There are no
rules.
DNK (do not know/no
opinion)
figure 6.2. School's position on cyberbullying. Reproduced with permission from the Ontario College of Teachers (2007).
164
CONFRONTING CYBERBULLYING
Question: Which of the following opinions on students harassing students with cyberbullying is closest to your own?
A. Schools or boards
should sanction
students involved in
A 47%
harassing other
students online.
DNK
B.
Most or all
5%
incidents of
C 5%
cyberbullying
B
should be reported
43%
to the police.
C. There's not much
that schools or
boards can do to
protect students
from other students
harassing them
online.
DNK (do not know/no
opinion)
figure 6.3. Students harassing students. Reproduced with permission from the Ontario College of Teachers (2007).
Also perturbing were findings that whereas 46 percent of teachers believed
that their school or school boards ought to sanction students for these online
forms of expression, 41 percent of English-speaking teachers believed that most
or all incidents of cyberbullying should be reported to the police. French---
speaking teachers allocated more responsibility to the schools and school boards
(59 percent), and 30 percent believed police should be involved.
See Figure 6.2. Forty-three percent of teachers also felt that peer-to-peer
cyberbullying should be reported to the police, although 47 percent believed
their board should sanction students.
See Figure 6.3. This study might provide some indications as to why teachers'
unions have come under so much pressure. If 84 percent of teachers believe they
have been cyberbullied through online postings, it is important to determine
what is going on. Teachers are increasingly filing grievances with their unions,
adding a "quasi-legal" dimension to already litigious issues. Moreover, many of
them (20 percent) believe that cyberbullying contributes to teachers leaving the
profession.
My research on censorship in schools (Shariff & Johnny, 2007; Shariff &
Manley-Casimir, 1999) might provide answers. This research disclosed that
teachers' unions are often pressured by their membership into galvanizing the
implementation of laws and policies that help teachers retain positions of power.
Antiauthority cyber expression has the effect of making teachers powerless.
Hence it is not surprising that some of them might want to leave the profession
CENSORING CYBERSPACE: CAN KIDS BE CONTROLLED?
165
as a result. The OTC, which commissioned the survey, has done a good job of
putting a well-rounded perspective on the issue. In the same issue that released
the survey results, Schriever (2007) interviewed a number of experts on the
subject of cyberbullying, including myself, and obtained a consensus that
banning technologies and suspending students are not the best options.
Lawyer Eric Roher and Dr. Faye Mishna, an associate professor at the University of Toronto, concurred with my advice that there is an obvious need to
engage with students to address why such a high number of teachers (84%)
report being demeaned online by students. The OCT reiterates my position
that rather than looking for "how-to" lists, teachers should engage with their
students and attempt to learn more about technology use. They also need to
find out whether their pupils are engaged in learning and whether their school
experiences are positive or frustrating. To that end, the Canadian Teachers'
Federation (CTF) has also taken positive steps.
After several incidents in which high school teenagers were caught making
derogatory postings about their teachers across Canada, CTF, an organization
representing approximately 220,000 teachers, came under significant pressure
to do something about it. Of course, the media reported this as a battle with
the headline, "Teachers Declare War on CyberBullying" (Brown, 2007). They
reported the unanimous passing of a resolution to form "an emergency work---
group to hammer out a national policy this fall on the use of cell phones in class
and school penalties for using blogs, email and any form of technology to hurt
other people's feelings" (ibid.). In actual fact, the resolution was designed less
to "wage a war" than to bring together a task force comprising experts on the
subject to understand Internet use among students, the nature of cyberbullying,
and the boundaries of intervention in cyberspace.
One objective of this initiative is to establish ethical standards relating to
technology use, identify the legal responsibilities and expectations of Canadian
teachers, and develop materials that support these standards toward implementation of consistent national policies and guidelines. I believe the CTF has taken
an important step in understanding the issues and that rather than "hammering
out" a national policy, as the media describes it, the federation's policy makers
have undertaken in-depth research and are approaching the matter thoughtfully
in partnership with national scholars and technology experts. The wording of
the resolution is given in Figure 6.4.1
The one concern I have with the wording of this resolution lies in paragraph c, which states "the need to deal with it forcefully" followed by "advice
on ways to deal with it." As a partner in the process, I advise the task force to
eliminate the word "forcefully," especially given that they have yet to obtain
informed advice from national experts. Many words could be substituted for
"forcefully," such as "collaboratively" or "the need to deal with it by drawing
on pedagogically sound approaches." In light of the fact that the primary mandate of teachers is to educate, I believe the word "educate" could also appear
more prominently in the resolution.
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CONFRONTING CYBERBULLYING
JULY 12, 2007
BE IT RESOLVED THAT the Canadian Teachers' Federation take urgent action on
issues arising from the use of electronic communications in ways that harm students and/or teachers and in ways that are harmful to the education process. Such action
should include but not be limited to:
a) development and dissemination of policy with respect to the appropriate use by
students, teachers, parents and the general public of new communications
technologies including, but not limited to, e-mail, Web 2, blogs, social
networking Internet sites (e.g. Facebook, YouTube, etc.), text messaging, and
cell phones within the context of schools, students, and the professional lives
of teachers and administrators. Further, this policy should examine the ethical
standards associated with the use of these technologies.
b) development of partnerships for action to educate students, teachers, parents and the general public of the consequences of inappropriate use of communications
technologies in activities that constitute cyberbullying.
c) development of materials for distribution by CTF alone or in partnership with
Member organizations and others about the seriousness of cyberbullying, the
need to deal with it forcefully, and advice on ways to deal with it.
d) conduct of research, analysis and dissemination of information gathered by CTF
alone or in partnership with Member organizations and others.
e) formation of a national work group of CTF Member organization staff who will
consult with such others as necessary before developing and recommending to
the CTF Board of Directors a national action plan on matters arising from
communications technology use, including cyberbullying.
figure 6.4. Canadian Teachers' Federation communications technology concern
resolution.
What Drives the Urgency?
What I find most ironic about this "urgent" need to address cyberbullying
as expressed by teachers is that for decades, bullying between schoolchildren
was generally accepted as a part of growing up, especially in schools. Even the
OTC Survey (2007) shows that whereas 84 percent of respondents reported
having been cyberbullied and 41 percent knew about their colleagues being
cyberbullied, only 33 percent definitely knew about their students experiences
with this, and 25 percent said that they definitely did not know about their
students being cyberbullied. These results suggest that teachers may be less
attuned to their students' experiences as victims of cyberbullying. Some of my
doctoral research findings, as highlighted below, support this proposition.
It was not until Dan Olweus (1978) published his work on the serious consequences of bullying in the late 1970s that interest in the subject really took
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167
hold. Before that, children who were victimized and complained were perceived to be "tattletales" and of weak character. It was not until as recently
as early 2006, when Facebook, MySpace, LinkdIn, Ratemyteacher.com, and
other online social networks really began to surface as popular venues to discuss authority figures that a larger number of teachers began to pay serious
attention to cyberbullying. It has now become a priority for teachers in many
countries. Peer-to-peer bullying and cyberbullying appears to have been less of
a problem. Consider some of the findings from my doctoral research regarding
teachers' responses to traditional bullying.
A Wall of Defense
Evidence in the research on traditional bullying suggests that until recently (the
beginning of the this century) teachers and school officials involved in well-publicized cases of bullying and emerging litigation2 are alleged to display a
pattern of denial, culminating in a "wall of defense" that emerges through complaints filed in court or conveyed in personal communications3 by at least nineteen Canadian victims of bullying. David Knight, mentioned in earlier chapters,
and his mother, Nancy, supported these claims in a lawsuit they filed against
their school in Ontario, Canada, but that is now in settlement negotiations.
Several Canadian cases serve as examples in which teachers, with the support
of school officials, refused to take bullying seriously despite repeated reports
from students who were being targeted. From this small number, few cases went
to court because most were settled before trial. However, the parents of these
children formed advocacy groups to publicize their experiences and frustration
with the way their schools handled their situations.
Teenagers Azmi Jubran, Hamed Nastoh, Jamie Dufour, Andrew Forin, and
Dawn-Marie Wesley were all victims of bullying. In every case (with the exception of Wesley), the parents reported the incidents to the school, and in each
case, the parents publicly claimed that little action was taken by the school
to protect their children. Azmi Jubran, as I have noted, eventually brought a
human rights challenge against his school and principal; Hamed Nastoh ended
his life by jumping off a bridge; Jamie Dufour's parents commenced a civil action
for gross negligence but abandoned it before the trial; Andrew Forin was suspended from school for filming a school fight made public by the media, and
Dawn-Marie Wesley hanged herself after receiving a threat from one of her
perpetrators, despite having visited a school counselor for help.4
Most of the parental accusations were not adjudicated by a court or tribunal
and therefore remain accusations rather than proven facts, because most were
settled out of court or abandoned. Nonetheless, the pattern of complaints is so
consistent across all the cases that the schools' actions (or lack thereof) cannot
be ignored or discounted. All the bullying cases contain the following pattern
of complaints against schools:
r Teachers and administrators often assumed the victim invited the bullying
and often denied that bullying was a problem at the school.
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r All the schools noted that they had zero-tolerance policies and antibullying
programs. They referred to mission statements, school policies, and student
codes of conduct, apparently assuming that stated intent absolved them of
responsibility to implement them appropriately.
r Teachers and school officials accused parents of overreacting and apparently
viewed them as troublemakers and harassers.
r If the victim retaliated against the perpetrators, the victim was suspended more often than the perpetrator.5
r The bullying continued well after teachers and school officials were made
aware of the situation.
r Victims had to leave the school while the perpetrators remained, without
being held accountable for their actions (until, in some cases, public outcry
resulted in criminal charges being made against the perpetrators). Little or no
action was taken to suspend or otherwise discipline the perpetrators, despite
the existence of zero-tolerance policies.
r Teachers and school officials refused to acknowledge the problem and therefore did not make a concerted effort to investigate the bullying or provide
consistent protection of the victim.
Tacit Condoning of Peer-to-Peer Bullying
One may well wonder why educators would tolerate bullying among peers and
why students have so little faith in gaining support from school officials. One
possible reason for this is the lack of knowledge or awareness that certain forms
of behavior do, in fact, constitute bullying. Time might also be a factor. Boulton
and Hawker (1997) suggest that some teachers might not address psychological
bullying (unless it is directed at them) simply because they have little time
to deal with the problem. They note that physical injuries take precedence
over verbal bullying because they can be established with more certainty in
court.
Thus the various demands on teachers, including classroom instruction, student supervision, and the unlimited possibilities for perpetrators to cyberbully
their peers might cause them to become overwhelmed and ignore the problem unless it involves authority figures. Moreover, MacKay and Flood (2001)
observe that budget restrictions and staff shortages may make it difficult for
teachers to follow through adequately on policy directives. Teachers today must
deal with large class sizes, ethnic diversity, and students with a range of abilities and disabilities who come from varying backgrounds and social classes.
This level of diversity presents many opportunities for discriminatory forms of
bullying and less time for teachers and administrators to address them. Consequently, the school climate can become less tolerant of individual students'
differences and more reliant on harsher zero-tolerance policies6 that are randomly applied to all students, irrespective of each student's situation.
Smith and Sharpe's (1994) study involving 7,000 British students in Sheffield
revealed that some teachers showed little concern for bullying victims. In some
schools, teachers even instigated bullying through name-calling. Although these
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169
teachers represent only a small percentage of those in Sheffield schools, it is troubling that such attitudes exist. Today, teachers are better educated on how to
communicate positively with students, and one would hope that the situation
would have improved during this time. Regardless, given the proliferation of
information and programs that have emerged since the 1990s, the sudden concern among teachers to deal urgently with cyberbullying because they are now
its targets suggests that most are realizing for the first time its psychological
impact and its effect on their working environments, yet many overlooked
the impact of peer-to-peer bullying on students' learning environments in the past.
As I noted earlier, perpetrators are often leaders who can be well liked by
teachers and peers (DiGiulio, 2001; Juvonen & Graham, 2001; Katch, 2001;
Olweus, 1978). This may explain why some teachers do not take victim complaints seriously. If teachers witness only the good behavior of certain perpetrators, they may not believe victims' claims. Moreover, as the National Crime
Prevention Council (1997) reports, victims are often unpopular with peers or
teachers. Research by Petersen and Rigby (1999, as cited in Campbell, 2005)
also found that many young people do not report bullying or cyberbullying
because they think their report will not be believed or that the incident will be
trivialized by adults. They found that less than 25 percent ever report bullying
because they "do not have much faith that adults can solve the problem and
fear that adults might make it worse" (Peterson, 1999, as quoted in Campbell,
2005). Both my own research (Shariff, 2007) and Campbell's (2005) confirm
that students are reluctant to report cyberbullying to teachers because they
believe nothing will be done about it.
Some theorists (Jiwani, 2001; Larson, 1997; Perkins, 1997; Razack, 1998;
Sefa-Dei, 1997; Wason-Ellam, 1996) suggest that teachers might be particularly
insensitive to the needs of children who are already marginalized on the basis of
race, sexual orientation, poverty, or disability (or ability), unwittingly creating a discriminatory school environment. Glover, Cartwright, and Gleeson (1998)
report that those teachers who had never experienced bullying or racial or other
forms of discrimination may not recognize teasing as bullying.
Now that they are on the receiving end of the cyberbullying, teachers may
stand up and taking notice. Scholars have also made the important observation
that although the student population in North American, British, and European
countries is ethnically and culturally diverse, and increasingly so, a parallel
diversity is not reflected in school staff or administration. Razack (1998), Dei
(1997), and others (Epp, 1996; Handa, 1997; Jiwani, 2001; Perkins, 1997) note
that the majority of teachers and school administrators in Western schools are
predominantly white, whereas the student population includes many students of
Asian, African, Hispanic, East Indian, and Middle Eastern descent. They point
out that despite being aware of discrimination, some educators continue to view
conflict through Eurocentric, androcentric, and middle-class lenses. Teachers
apply their own frame of reference to others' reality, and if the behavior does not fit their experiences, they may not consider the possibility of harm. This makes
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it difficult for many bullied students to identify closely with their teachers -- and vice-versa.
PARENT VERSUS TEEN CYBERBULLYING
Recently, a highly disturbing and controversial case has drawn significant attention from media and the justice system in the United States. The case involves
a forty-seven-year-old Missouri woman, Lori Drew, who took on the identity
of a sixteen-year-old boy named Josh to lure her daughter's thirteen-year-old
friend Megan into an online relationship. Posing as Josh, Mrs. Drew's messages,
initially friendly, suddenly turned nasty on October 15, 2006, culminating in a
statement that read "The world would be a better place without you" (Maag,
C., 2007, http://www.nytimes.com/2007/11/28/us/28hoax.html, accessed January 13, 2008). Megan Meier had trusted in "Josh" as her online boyfriend.
Devastated, she took this message literally and committed suicide. While the
teen was already on anti-depressants, this email is assumed to have pushed
her over the edge. Her mother discovered her in a closet, hanging from a belt
(ibid.)
Controversy has arisen over the fact that local and federal authorities in
Missouri investigated the case but did not press charges against Mrs. Drew
because her online behaviour "might've been rude, it might've been immature,
but it wasn't illegal" (ibid.). However, the U.S. Attorney's office in Los Ange---
les is reported to be looking into the case with a view to charge Mrs. Drew
with federal wire fraud, as well as cyber fraud against MySpace, as its head
office New Corp., is based in Beverly Hills, California. Although the possibility
for successful prosecution of MySpace is minimal because of established legal
precedents that categorize ISP providers as "distributors" and not "publishers,"
absolving them of the obligation to monitor discourses on their networking sites
(see discussion of cyber libel in Chapter 3), this case is worth watching for its
own precedent-setting value if Mrs. Drew is successfully prosecuted for wire
fraud. Regardless of the legal issues it raises, it supports my argument from an
ethical perspective, that adults are sometimes the worst abusers of cyberspace.
Similarly, it is often adults that frame reality to fit their own agendas, most
often at children's expense.
School Officials, School Reputations, and the "Official" Story
Many schools continue to rely on the traditional authoritarian approaches
toward school and student management that have been around for decades,
since the time when schools were much more ethnically homogeneous. Unfortunately, those models are less effective in a pluralistic school population, especially when new technologies and cyberbullying are involved.
As we have seen, the Internet has created new dilemmas for educators, and
many of them state they are unprepared for and quite uncertain how to handle
these issues; yet they are very vocal when the bullying is directed at them.
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171
Moreover, reports from Britain, the United States, and many other parts of
the world suggest that educators' policy and practice responses continue to be
reactive and more heavily focused on control of behavior than on prevention
through education options. Some of those responses are featured later in this
chapter. First, however, consider these comments in 2006 by a school standards
government official, as reported in the Guardian:
A culture of disrespect and failure to take responsibility will not be tolerated. . . . It's easy to lose sight of the fact that pupil behaviour in the majority of schools is good for most of the time. . . . But it takes only a handful of poorly behaved pupils to make life difficult for teachers and disrupt the education of other pupils.
(Press Association, 2006)
When we consider the legal responsibility of schools to ensure that they do
not create a "deliberately dangerous" or "poisoned" environment, as discussed
in Chapter 5, this school official's comments illustrate that although he attempts
to meet his obligations to foster a culture of respect, the means that he suggests
(suspensions) are in and of themselves largely intolerant. What school officials
do not realize when they implement zero-tolerance approaches is that they
might be modeling the very forms of intolerance that students are protesting
online. As with the case of A. B. ( A. B. v. State of Indiana, 2007) in Chapter 4, quite often students are protesting autocratic approaches that already create a negative school culture.
Another factor that often plagues school administrators are poor relationships between administration and their staff, and among the staff members
themselves. This makes for a potent recipe. For example, the administrators at one school that experienced antiauthority forms of student expression
explained that they were frightened of returning to school after the summer
because the teachers were seeking "blood." The teachers' anger toward some
of the students was surprising given that even the administration admitted most
student comments were innocuous and close to the truth. There appeared to be
few libelous comments with one or two exceptions.
In attempting to understand the rage of the teachers who demanded that
at least four of the students be removed from the school, I asked the school
administrators about the culture at the school.7 Our conversation disclosed
that the school had a history of fractured political relationships. The school was
taken over by several school boards throughout its history and had experienced
changes with many new administrators who came and left, while many of the
staff remained at the school. Because of its prestigious academic reputation, the
school is popular with teachers and parents. The teachers and student body are
largely homogeneous (mainly from European backgrounds) with few students
from other ethnic groups. Many of the teachers are set in their ways, endorsing
a disciplinary and didactic approach rather than the more interactive and open
approach advocated by the Quebec Ministry's educational reform package.
Relationships between the teachers themselves within departments have not
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been friendly, and relationships between faculty and administration have also
been hostile.
It became apparent during my conversation with school administrators that
the teachers at this school might be using the Facebook incidents as a way
to get back at school authorities. The effect of frustrations that have festered
for many years appear to have exploded to the surface. Unfortunately, the
students became scapegoats of the power struggle between faculty and school
authorities.
In this political struggle, the fact that the students are immature, make mistakes, and do not necessarily realize the impact of their comments is lost.
Moreover, the realization that teachers are responsible for educating students
to engage in inclusive and socially responsible discourse is also overlooked as
teachers take entrenched positions. These situations create chilled and poisoned
school environments that support violence and discrimination, making it difficult to learn. It is not surprising, then, that the discontent of the school climate was reflected in student online comments about their teachers. Although the
entire focus has been on the students and their bad behavior, teachers and
schools are missing the crucial signs that indicate something is wrong at their
schools that this needs to be addressed immediately. This could require an entire
restructuring of the school culture when negative feelings are so embedded and
endemic. Suspending and removing students who have the courage to comment
(albeit in immature ways) on a poisoned school culture will by no means fix
the problem. The students are not always the problem. The Internet and Facebook and YouTube are not always the problem. The problem resides within the
school culture -- with the long-time teachers and their negative feelings about
the way things are done and with every new administrator who attempts to
second guess what exactly the teachers want and who are in some ways afraid
of teachers' protests and their pressure to give in to their decisions. These are
the hierarchies of stakeholder power that can play themselves out in schools.
School officials often fail to realize that in leaving issues unresolved, they are
in fact creating a deliberately dangerous environment for both students and
teachers and thus failing to meet their legal responsibilities to foster positive
school environments.
Extension of power to teachers under legislation, combined with a zero-tolerance environment, may also create unequal opportunities for students from
traditionally excluded groups or students who are biologically predisposed to
behavioral problems. Ross-Epp (1996) suggests that when schools emphasize
complicity and competition, they perpetuate systemic violence against marginalized students:
Systemic violence is found in any institutionalized practice which adversely impacts on students. To be damaging, practices do not have to have a negative impact on all students.
They may be beneficial to some and damaging to others.
(p. 3, emphasis added)
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Thus many practices that are assumed to be beneficial may, in fact, be the very
processes that marginalize some students. The following are some examples.
The Official Story
Consider Andrew Forin's case. Andrew, a teenager and an avid videographer,
had heard about a prospective fight on the school grounds and decided to
videotape two boys who were beating up a smaller child while a large number
of supporters looked on, cheering. After taping the fight, he went to his weekly
job at a television station where he showed his tape to one of his supervisors.
She offered him $300 for it without explaining the ramifications to him. The
tape was immediately distributed to media networks, which aired the tape that
evening. School officials were angry that Andrew had sold the tape to the media
and suspended him the next day but did little to discipline or even interview the
students who conducted the beating, even though its brutality drew questions
from the public about the problem of bullying at the school. As we know, the
media are known to sensationalize events (see also Dolmage, 2000). Andrew
found himself in a catch-22 situation: The school suspended him, claiming that
his video gave the school a "black mark," and at the same time, he became
a victim of media sensationalism. The furor over his video diverted attention
from the most important issue: the actual bullying and beating of a smaller boy
that had occurred at the school. The perpetrators were not disciplined until the
public called for charges of criminal assault, which were filed twelve months
after the beating took place. It appeared that teachers and administrators were
less concerned about the bullying than the school's reputation and public image.
Larson (1997) found a similar pattern in her investigation of a racial conflict
in a U.S. school and offers an explanation for this pattern of denial among
teachers and school administrators. She notes that administrators have traditionally been more concerned with good housekeeping and school reputation
than with examining what drives the conflicts in the first place. When bullying
or violence is publicized, it reflects poorly on a school's reputation. Therefore,
the initial tendency can be to downplay the situation or deny that a problem
exists. Moreover, instead of investigating the root causes of a situation, schools
sometimes redefine the problem, blaming the victim, or implying that he or she
is a danger to others.
Larson examines an American case in which black students who were bussed
to an all-white school attempted to draw attention to a racial problem by
burning a flag at a talent competition. The black students were immediately
suspended for being dangerous, even though one of them was an honor-role
student and had no record of violence. Larson concludes that by magnifying
the perceived danger of the black students' actions, school administrators failed
to address the root problem of racism at the school.
Teachers' and school officials' responses in these cases have similarities to a
number of the recent cyberbullying cases involving students' online postings
about teachers and school personnel. At a Roman Catholic school in Ontario,
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nineteen students were suspended for "bullying" their school principal on a
Web site. Student postings included calling the school principal "The Grinch
of School Spirit," directing sexually explicit remarks at him and displaying
pictures of Osama bin Laden and Adolf Hitler. Consider the observations of
one school official:
[W]hile the school board has dealt with students cyberbullying each other, he is not aware of any previous attack on a staff member, which is a transgression of the board's code of conduct. . . . This is very dangerous ground these kids are treading on. It's not conducive to the moral tone of the school, and it undermines authority. It is damaging to the reputation of this school.
(Rusk, 2007)
The reporter interviewed a student who said that suspended students
included the president and other members of the student council who had
been added as officers of the chat room without their permission. Although she
agreed that the online postings were slanderous, in her opinion the punishment
was too harsh because it would go on the students' record and prevent them
from being accepted at universities of their choice. Although the undermining
of authority is definitely a serious issue, it is not clear why victimization of
children who might commit suicide as a result of cyberbullying is less important. The school official in this case did say that if it had involved peer-to-peer bullying, the students would have received even longer suspensions. Yet this
leaves open the question as to what schools believe will be accomplished by
harsh punishment. Whether students receive a ten-or twenty-day suspension
makes little difference in the context of alleviating the issue, other than getting the perpetrators out of school administrators' hair for a few days and calming
the teachers.
SELECTION OR CENSORSHIP?
Although I have already dealt extensively with the role of teachers in addressing
bullying and cyberbullying, it is important to highlight their power in shaping
what children learn and access through a censorship perspective. Teachers and
principals are the most accessible school personnel, and therefore the majority
of challenges that relate to what children learn and how they are expected to
communicate are first directed to them (as opposed to school counselors, school
commissioners, and school trustees). Increasingly, we see that what teachers
discuss in the classroom is under the lens of public scrutiny. Therefore
educational specialists often need to engage in a great deal of self-censorship,
especially when examining political issues in the classroom. These education
officials, in an attempt to avoid conflict or potential legal suits, may acquiesce
to the demands of protesters. Consequently certain topics or resources may
not appear in the classroom. Moreover, educators have been found to engage
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175
in self-censorship on a regular basis (Arons, 1986; Dick & Canadian Library
Association, 1982; Shariff & Johnny, 2007; Shariff & Manley-Casimir, 1999).
These authors all explain that censorship controversies among parents, students, and teachers can cause a chilling effect in the school environment, and
thus their educational decisions on the types of resources to include and the
content of dialogue and classroom discussions may be motivated by a need
to protect themselves. A controversial book banning case in Surrey, British
Columbia, Canada, is a clear example, as parents threatened to sue any teacher
within the Surrey School District who ventured into discussions of homosexuality in the classroom. This resulted in a chilled silence by teachers in the district who did not speak up against the banning of the children's books from kindergarten classrooms, even though many found the books innocuous and helpful in addressing homophobia, bullying, and cyberbullying (see Shariff, Case, &
Manley-Casimir, 2000 for details on this case).
Noll (1994) confirms that highly publicized educational resource challenges
have a ripple effect in the classroom because they dissuade teachers from discussing certain topics with students. This concludes in a type of self-censorship
in which education officials fail to include materials that are approved by the
ministry for fear of invoking anger or dissent in their school communities. As
noted earlier, the tendency among many teachers and school officials is to avoid
controversy by banning or attempting to sweep sensitive issues under the rug
in the hope they will go away and school reputations may be preserved. As
I have argued elsewhere (Shariff & Johnny, 2007; Shariff & Manley-Casimir,
1999), this tactic almost always backfires in heated controversy. Whether it is
in books or in online communication, the minute there is any disagreement
about whether such content should be censored or banned, people run to buy
the book before it is taken off the shelves or immediately log on to the offending
Web sites to read the offensive content and make a determination of their own.
The recent controversies relating to material posted on Facebook, YouTube,
and other sites have had exactly that effect. Although technology providers are
less reluctant to remove the content, there is often a delay of a day or two before some postings can be removed. As Roher (2007) explains, the complainant has
to establish that the content is sufficiently offensive to be removed from a site.
As I discuss in the next chapter, the jury is still out on what forms of online
content can be considered sufficiently serious to be removed.
Parents as Censors
Parents are among school stakeholders influenced by the way in which the
media frames certain situations. Parents elect school board trustees, who in
turn bow to pressure from government officials to restrict and control what
sources of knowledge are presented to children in schools. School principals
and teachers, in turn, bow under pressure from parents, schools boards, politicians, and the media, concerned about their public image and reputation in
the educating of "moral" citizens. In turn, they self-censor or restrict access
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to or expression of certain forms of student communication. What they all
fail to realize is that instead of creating a positive, empowering, and engaging
learning environment, these intersecting and interlocking systems of oppression
(Razack, 1998) stifle creativity, growth, and intellectual inquiry and innovation.
They instead provide a breeding ground for prejudice and bigotry, autocratic
hierarchies of power, and marginalization of students from underrepresented
or underprivileged groups who do not meet the norm. Parents often assert
their "parental prerogative" to intervene in what their children are exposed to
or learn at school. In the literature on school censorship, there are numerous
examples of parents who pressure school boards, administrators, and teachers
into banning educational resources containing sexual content, information on
witchcraft, references to homosexuality, and so on to which they do not want
their children exposed (Arons, 1986; Dick & Canadian Library Association.,
1982; Shariff & Johnny, 2007; Shariff & Manley-Casimir, 1999).
It is important to consider not only the positions that parents are taking with
respect to the issue of cyberbullying but also the history of parental prerogative in school censorship controversies. The role of parents in shaping what
forms of knowledge and information children are exposed to in schools cannot
be discounted. Parents can wield great power when they organize to pressure
school boards and administrators into censoring perspectives they do not want
to reach their children.
Parental Prerogative on Educational Resources
My research to date on parental prerogative to challenge schools on educational
resources discloses that the majority of protests come from parents who feel
that certain topics, books, or films are ill suited for children. What is clear is
the power parents have over school boards, schools, and government to shape
what is selected for inclusion or censored from school classrooms (and now
online learning).
The American Library Association (2006) estimates that in the United States,
more than 70 percent of book challenges come from parents alone. Increasingly
parents have also begun to assert their parental prerogative and their right
to have a say in what their children are taught in the curriculum, as well as
in the way they are socialized in public schools. The following examples of
school censorship cases in which parents have challenged what their children
are exposed to may not be directly related to cyberbullying, but they show the
extent of control that parents can exercise on schools to ban certain kinds of
information.
Since the introduction of the Johannes Gutenberg printing press in 1455, the
issue of banned books has escalated. Foerstel (1994) explains that once speech
could be printed, it became a commodity to be controlled and manipulated on
the basis of religion, politics, or profit. On the Internet, these opportunities are multiplied infinite times, which in turn limits the amount of control that can be
exerted. Until now, books have been challenged and banned worldwide for a
variety of reasons. Where young children are involved, overprotective parents
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177
have pulled no stops to prevent their children from being exposed to harmful
books and resources -- from the trivial depiction of a bottle of wine being
brought to a sick mother in a picnic basket in the fairytale "Little Red Riding
Hood" by the Grimm brothers (Foerstel, 1994), to witchcraft and wizardry
in David Booth's famous fourth-grade readers, the Impressions series. Booth's
series contains a story titled "In My Feet" in which a pair of giant boots kidnaps
a child's parents and takes them away. Parents in Alberta, influenced by Jerry
Falwell's right-wing religious group in the United States, were so upset by the
witchcraft in the story, they held the principal of a school in Mayo, Alberta,
hostage. These powerful stakeholders threatened not to release him unless he
removed the books (Shariff & Manley-Casimir, 1999).
A review by Jalongo and Creany (1991) found that children's books are
usually censored for three reasons:
1. mature or realistic content inappropriate for a young and captive audience,
2. profane or obscene language, and
3. inappropriate sexual content.
Herzog's (1995) study on school censorship in the rural hills of Appalachia
in the United States supported these findings. Herzog categorized school censorship by looking at the nature of censorship events, the objects of censorship,
the initiators of censorship, and the motivation of the protestors. Her research
confirmed what I have already noted -- that the nature of school censorship
centers around community values, school location, cultural influences, religious
beliefs, and public controversies -- what Steven Arons (1986) refers to as "corro---
sive, irreconcilable and proliferating conflict between government and family"
(p. 8). Herzog also observed that the objects of censorship include curriculum
materials, school texts, school library books involving cultural literacy, scary
stories, fantasy, folktales, violence, the occult, witchcraft, taboo words, secular humanism, sexuality, creationism versus evolution, and political correctness.
She observed that the initiators of censorship primarily consist of those who
seek to maintain a curriculum of orthodoxy and conformity. This generally
involves the far-right censorship network. At the other end of the spectrum,
censorship is increasingly initiated by those farther to the left.
Censors have also targeted young adult literature. Sacco (1994) notes that
literature directed toward this age group emerged in the 1930s, but it was only
in 1967 that a new type of young adult novel came into play -- the "problem"
novel. Problem novels deal with issues that youth encounter in their journey
toward adulthood. Topics covered by these books often include taboo topics
such as abortion, sex, homosexuality, racism, violence, abuse, and so on. Over
the years, the quality of young adult novels has improved significantly, to the
point that teachers are increasingly using problem novels as classroom texts,
replacing classic novels that students no longer find interesting or relevant.
However, with the introduction of such novels in classrooms came problematic
censorship controversies. Parents often challenge books that contain numerous
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swear words and obscenities. Bringelson (2005) explains that for a young adult
to be able to imagine a scene, the author must use the slang and vulgar expressions that youth use today. At this point, it is important for the teacher to step
in and explain that they do not condone such language. The books are mainly
used to help youngsters appreciate that in some contexts in the real world,
offensive language is used.
Sexuality in young adult novels also invites censorship. This can include
a teenager's first sexual experience, masturbation, sexual desires, abortions,
menstruation, and homosexuality. It is well known that adolescents are curi---
ous about sexuality and thus important that they are exposed to information
within a supportive environment. Such books allow students to learn about the
realities of life without being embarrassed. Nonetheless, books such as Alice
Munro's novel, Lives of Girls and Women, in which the main character sees
male genitalia for the first time, was petitioned to be banned from a Toronto
high school in 1982 (Wallechinsky, Wallace, Basen, & Farrow, 2005). Similarly,
Mrs. Serup, a parent in Prince George, British Columbia, removed the books
Boys and Sex and Girls and Sex from the Prince George High School library.
When asked to return them, she filed a lawsuit, claiming that her free expression rights under Section 2(b) of the Canadian Charter of Rights and Freedoms had been infringed by the school administration. The British Columbia
Court ruled that her behavior was disruptive to student learning and that having the books in the school library did not offend her expression rights. She
was concerned that she did not want her teenage son to learn about sex at
school.
British Columbia in Canada seems to attract censorship controversies. In
1993, in Abbotsford, a right-wing Christian community, teenager Katherine
Lanteigne wrote a play titled If Men Had Periods and submitted to a competition for $1,000 scholarship. The play was banned from the competition. This drew so much media attention that the local newspaper, the Vancouver Sun,
held a debate to assess people's views on whether it ought to have been banned.
Katherine was given $1,000 to air the play on the Canadian Broadcasting Corporation airwaves -- the country's national broadcasting system. Katherine's
teacher commented that the play in and of itself was not good enough to win
the competition but the board should have allowed her to enter it. Instead, a
mediocre play received more attention than the winning play. This supports
my position that when educators attempt to sweep sensitive matters under the
rug, they in fact emerge with twice the prominence and generally embarrass the
censors. Books that are banned often sell more copies than they would have
because people rush out to buy them to see what the controversy is about.
Other young adult books that have sparked controversy include Judy Blume's
novel Are You There God? It's Me, Margaret, which deals with masturbation,
menstruation, and intercourse.
Violence is another topic that some parents want their children to avoid.
Anthony Burgess's A Clockwork Orange, which depicts rape and violence, has
invited many protests when it has been a required high school text. Moreover,
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179
the Captain Underpants series by Dave Pilkey was reported by the American
Library Association (2006) as the most challenged book of 2005 because its
antifamily content was perceived as unsuited to the age group and violence.
Steven Arons defines the motivation of the protestors as "a general struggle for
meaning . . . one between the forces of private dissent and the agents of public
orthodoxy" (as quoted in Shariff & Manley-Casimir, 1999, p. 161). Those
who challenge school curriculum are often motivated by one or more of the
following:
r Religious and moral differences
r Fundamentalist parental overprotection or modern liberal values
r Politics, authoritarianism, and a desire to protect administrative jobs
r Fear of psychological manipulation
r Different interpretations of the purpose of education
r Fear of change
r Words and meanings taken out of context
The popular Harry Potter children's books have appeared on many library
and school challenged book lists (Wyman, 2000b). Parents question the appropriateness of Harry Potter books for use in the classroom because they depict
wizardry and witchcraft and apparently "carry a serious tone of death, hate,
lack of respect and sheer evil" (Shariff, Case, & LaRocque, 2001). J. K.
Rowling's response is generally one of resignation. She states that if we attempt
to ban all books that mention witches, we would have to remove most classical
children's stories. Through her characters, Rowling introduces young readers
to the endless conflict between good and evil. She explains that Harry represents a child with a deep moral conscience who has a "human underbelly" (as
quoted in Wyman, 2000a). Moreover, Rowling stresses the difference between
choosing the right path as opposed to finding an easy way out of a difficult
moral situation. Child psychologist Bruno Bettelheim (1989) concurred with
this perspective many years ago. Bettelheim explained that when stories force
children to confront good and evil through witchcraft, magic, and other forms
of imagination, it actually helps them develop a moral framework for understanding the differences between right and wrong. The deepest conflicts between
stakeholders are related to values. In the following case, the disputes were over
religious and secular values.
As already noted, religious parents have had significant impact in having
books depicting same-sex families removed from the curriculum in some school
districts, while at the same time, same-sex parents assert their rights to have their children's family backgrounds validated in the curriculum. Parents also assert
their rights in the realm of special education, from requesting full integration
of children with special needs into regular classrooms to the streaming of gifted
students in separate classes or specialized programmes where they can learn
with peers at their own intellectual levels. With an increasing public distrust of
the school system, parents have also expressed their rights to review student
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records and question teachers' evaluation of their children's progress. At times,
parents can get carried away in their zeal to protect their children.
It is no surprise, then, that the complexities of new technologies have parents
and schools feeling helpless and out of control. Fear of change and fear of what
their children will learn or access in cyberspace is a legitimate concern for
parents -- especially those who were formally able to influence the schools to
address their parental prerogative.
Government Influence
Although governments such as the European Union play a vital role in developing responses to cyberbullying, British Web sites, proposed U.S. legislation
(e.g., the Deleting Online Predators Act [DOPA] of 2006), and similar legislation in Singapore, South Korea, and India, they also have a large influence on the
initial selection of learning resources. Governments have significant power in
shaping the types of student expressions that are allowed in schools, informing
and molding young people's attitudes and values within the school itself. Most
schools are agents of the state. Their primary responsibility is to develop young
people's values and dispositions toward civil and social responsibility, so that
they can contribute constructively to the democracies in which most of them
live. Nonetheless, the political and systemic thrust toward control of information often makes this antithetical to the spirit of education and democracy.
The legislative initiatives that a number of governments have introduced
are largely in reaction to demands by the public and educators to do something about cyberbullying. The proposed DOPA bill referred to in Chapter 7
is one example, as is the amended Ontario Education Act and the legislation
introduced by the South Korean government that criminalizes certain forms of
online expression (see Chapter 3).
Censorship of expression, whether it is in the form of what students say or
what they read and learn, is not a new phenomenon in schools. Governments
have always promoted political agendas through the types of learning materials
they approve. However, until the advent of information technologies, those
materials were generally tactile -- in the form of textbooks, library books, videotapes, photographs, tape recordings, and so on. They were not a moving target
as expression and information now are, in cyberspace.
Apple and Christian-Smith (1991) remind us that educational resources are
not simply "delivery systems" that convey a set of objective "facts." Instead,
they are creations designed and selected by people with a particular set of
interests. The recent panic to amend existing legislation and bring in new laws
to "control" bullying and cybers bullying indicates that many politicians are
nervous about online student expression because they cannot control information that is accessed online and therefore cannot ban it. In other words, they
cannot ban specific online content because it takes different forms, in blogs,
chat rooms, e-mail, MSN, cell phone texts, online videos, and social networks
such as Facebook.
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181
When government officials approve learning materials that favor one worldview over another, it is arguable that they engage in shaping knowledge by
failing to represent multiple perspectives. This point is exemplified in a number of conservative states in the United States and some Canadian provinces
where official textbooks omit any discussion of homosexuality as a legitimate
lifestyle. This in turn might play a significant role in the level of homophobic
cyberbullying that takes place. The United States, of course, is not the only
nation where the education system is vulnerable to the interests of politicians.
In many countries, the government is one of the primary institutions through
which education is offered to the public, and therefore the selection of educational materials and policies has close links to the ideological interests of those who govern the nation.
School Boards
Along with ministries of education, school boards also have significant discretionary powers. For example, in British Columbia, Canada, Section 85 of
the School Act states that school boards have the power both to "determine
local policy for the effective and efficient operation of schools" and to "approve
educational resource materials and other supplies and services." Moreover, Section 76(3) suggests that "the highest morality will be inculcated but schools will
be run on a strictly secular and non-sectarian basis." On one hand, this provides board members with the autonomy needed to select resources and policies
suited to the needs of their school community. However, when it advocates the
"inculcation" of the "highest morality," it raises important questions about
whose values can be considered to be of the "highest morality?"
On the other hand, it is arguable that even the decisions of board members are
susceptible to political pressures and outside influences. For instance, as elected officials, school trustees are accountable to their voters and vulnerable to the
demands of special interest groups. One of the ramifications of this structure
is that educational decisions are sometimes propelled by the need to appease
powerful voices rather than a genuine concern for the diverse perspectives and
values of the school community. With the emerging concerns relating to insults
that have been posted on social communications tools such as Facebook and
YouTube, school boards, like the governments in various parts of Canada,
the United States, Ireland, and England, have had to bow under considerable
pressure from teachers' federations and teachers' unions.
With the emergence of cyber technologies, school board officials worldwide are undoubtedly concerned about how to manage access to information that was previously much easier to control. As the diversity within school
populations becomes more multicultural, multiethnic, multireligious (and more
interesting), the challenges for school boards increase as they attempt to navigate competing rights and interests. As the OCT survey shows (See Figure 6.5
above) teachers believe that school boards have a significant responsibility to
formulate and explain rules and state the potential for consequences. However,
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Question: Which of the following statements best describes any policy that your school or board may have on how students may communicate on the Internet and web sites or in e-mail and chat room?
A. There are formal,
well understood
rules with potential
A 49%
consequences.
B. There may be
DNK 9%
formal rules but
they are not widely
D 6%
understood.
C. There are informal
rules.
C 11%
D. There are no rules.
B 25%
DNK (do not know/no
opinion)
figure 6.5. School policy. Reproduced with permission of the Ontario College of Teachers (2007).
the expectations of school boards by teachers need to be reconceptualized to
stress that they concentrate on improving the school culture rather than engaging in punitive codes of conduct. As the OCT survey question that follows
evidences, most school boards implement formal rules with potential consequences. Although the questions did not allow for expansion to determine
whether such formal rules might be supplemented or supported by initiatives
that engage students in a discussion about why they should not engage in cyberbullying, in and of itself the response of 49 percent of the participants suggests
that this may not be the case.
Media Influence on Censorship and Positivist Laws
Given that issues involving antiauthority cyberbullying have begun to emerge
only recently (2006--2007), few scholarly studies have yet qualitatively surveyed
its incidence and school responses. Therefore, throughout this book, I have had
little choice but to rely to some extent on media reports and on personal communications from school administrators and teachers to discuss case studies. I
reiterate that I am all the while conscious that there may be aspects of those
cases that are not disclosed in the media reports or personal communications.
Nonetheless, I contend that no matter how the media frames the issues, there
are definitely clear patterns that emerge in most reports. These reflect the fact
that students and technologies have become scapegoats for deeper systemic
hierarchies of power within schools and among stakeholders that ought not to
be overlooked in our attempts to address the policy vacuum.
I support Edwards (2005) and Mazzarella (2005) when they caution that
the news media can control reality to a certain extent by framing stories to
fit certain agendas and control the message to place the spotlight on certain
issues over others. When media reporters and editors select information and
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183
wording to formulate a new story, they in effect become powerful "censors" of
information that ought to reach the public but is often left out of the picture or
given less focus. Engaging in critical media literacy is not a simple task, but it is an essential one. An entire body of scholarship has emerged in the last decade to convince us about the utility and necessity of engaging in critical media literacy
(Chomsky, 2007; Macedo & Steinberg, 2007; Shaheen, 2000, 2003).
Although I did not systematically go through more than 100 new report
articles on the topic of cyberbullying to identify specific patterns, as I write this book, I have quickly become aware of clear patterns. I am at present surrounded
by at least forty or fifty print media reports, many of which were reported in
the last year (2006--2007), as they relate to antiauthority forms of online social
networking postings by high school students.
Good Students Get Caught
One of the patterns that emerged in many of the news media articles about kids
who were suspended from school for their online postings is that they were
all generally good students. Each one ran astray and paid too heavy a price
for his or her teenage horseplay. For example, Brad Parsons is described as a
"teen who 'likes hanging out and chilling' with his friends"; it is noted that
"he and his friends have long had problems with [a vice-principal]" and that
their group was singled out because they hung around in the back of the school
where "other students created problems." He is then by implication described
as a model student:
[Parsons,] whose favourite classes are English and drama, says he was getting good
grades and was finishing an essay on Macbeth when he was expelled. . . . "I'm losing out on my education because of this and it's going to set me back," he said.
(Chung, 2007)
As Edwards would argue, all this emphasis on the fact that Brad is a good
student who likes English and drama, who had ongoing problems with the
assistant principal, and who will now likely lose out on his education (together
with his mother's comments to the effect that all students say mean things
about teachers) have the combined effect of trivializing the content of the online
expression that got him into trouble in the first place. Nor do we hear the side of the assistant principal as to the nature of the ongoing "trouble" this particular
group of kids who hung out in the back of the school had with her (or she
had with them). Moreover, the article states conflicting facts as to whether he
was expelled or not. Earlier on, the article says that Brad had been told he was
going to be expelled but wasn't, and the same article later states as a fact that he was expelled. The school superintendent is reported to confirm in a different,
later, and better balanced report that Brad was not in fact expelled, although
he claimed to reporters that he had been (Girard & Nguyen, 2007).
Even though I am strongly against suspensions for this form of cyberbullying, and although I do believe these youngsters when they say that they
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did not realize the seriousness of the demeaning words they use online, it does
bother me that in presenting Brad as a squeaky-clean student who wouldn't
think of doing wrong, the media trivializes the fact that his expression was
potentially libelous. It is important that students are shown that some of their
comments could render them liable for a legal offence such as cyberlibel. Moreover, even though many students maintain their belief that their online banter
constitutes private conversations, as Edwards (2005) would argue, the media
angle taken in this case shifted the focus away from the need to be engage with
the teens to discuss the issues they were having with their assistant principal.
Clearly there were conflicts. The article also precluded an explanation from her
perspective. It is highly likely that the assistant principal was having as much
trouble with the teens as they were with her when they "hung out" in the back
of the school.
Hence, although I do not believe these tensions should be conceptualized as a
battle, nor do I necessarily agree with the formal and rather harsh initiatives that are emerging internationally to address this form of cyberbullying, I certainly
do not absolve the students of responsibility. What I would like to see are
increased efforts to guide them to take responsibility for their actions. We ought
to help them understand the impact their expression has on the overall climate
and learning within the school and also find out whether their comments are
the result of a poisoned environment that exists within the school.
Another media account presents the experiences of teenager Julia Wilson in a
similar way ("California Grade 9 Girl Questioned," 2006). Julia is described as
a teenager from a well-to-do suburb. The article implies that someone who has
hearts on her knapsack could do nothing wrong. Julia wrote on her MySpace
page the words "Kill Bush" with a dagger through them to express her opinion
against the Iraq War. On the basis of the decision relating to A. B.'s ( A. B. v.
State of Indiana, 2007) described in Chapter 4, her right to free expression might have been upheld in a court of law. The impact of Julia's online threat was minimized because of her racial background and the economic status of her
parents. Had a Muslim student done the same thing in her place, it is plausible
that he or she might not have gotten off so easily, even if his parents lived in
a wealthy neighborhood like Julia's. The following excerpts make Julia appear
completely innocent, which takes the focus off the fact that she did write the words "Kill Bush" and regardless of how much she did not agree with the Iraq War, this was not the way to express her views:
"I wasn't dangerous. I mean, look at what's (stenciled) on my backpack -- it's a
heart. . . . I'm a very peace-loving person," said Wilson, an honor student who describes herself as politically passionate. "I'm against the war in Iraq. I'm not going to kill the president."
Moreover, presenting her as a clueless teenager is equally effective at presenting
her as a sweet and innocent teenager,
CENSORING CYBERSPACE: CAN KIDS BE CONTROLLED?
185
"Are you serious!?!? Omg. Am I in a lot of trouble?" her daughter wrote back, using code for "Oh, my God."
(ibid.)
Quite clearly, given her decision to organize a protest against the war in
Iraq and the fact that she is an honors student, she is bright enough to realize
that when she posted the expression, it would definitely draw a reaction. My
point in discussing this article is to show that although the teen clearly made a
mistake and did not immediately realize the implications of her actions, teens
ought to take some responsibility. In Julia's case, her parents took the positive
steps of guiding her toward constructive activism on an issue about which she
felt strongly. Organizing a protest against the Iraq War gave her the agency
she had sought online and a feeling that she could contribute to solving the
problem. In other cases in which students have made negative comments about
their teachers, they, too, are using the Internet as a tool for agency -- a place
where they feel empowered to do something about a poisoned environment
at their school or trouble with a teacher. Regrettably, they quickly find out
that this form of agency is not as effective, and this is where a nonreactive but
educational approach would provide them with alternate avenues to express
their feelings and contribute to changing their learning environment.
Cyber-Criminals: Police as Heroes
In contrast to the report of Brad Parsons as a model student, two other media
reports on the same story focused on the student protest and the "clash"
between students and police. One of them in the Toronto Star (Girard &
Nguyen, 2007) read as follows:
Four teenagers have been arrested after a protest over the punishment of a fellow high school student turned violent when police, trying to divert traffic, were pelted by objects including a bottle and a skateboard.
The ugly incident outside Birchmount Park Collegiate Institute in the Danforth Avenue and Birchmount Road area yesterday followed the suspension earlier this week of five students after school administrators discovered derogatory comments about Birchmount Park staff. . . .
"Everyone was on the road and then things started flying and the cops started flipping out," said Ryan Duffy, 16, a Grade 11 student who saw the melee in which angry
protesters yelled at police and chased officers as the young men were arrested, handcuffed and pinned on the ground, then thrown into cruisers.
The use of words such as "ugly," "pelted," and "pinned on the ground, then
thrown into cruisers" highlights the power of the state in winning the battle.
In the same article are comments by the superintendent noting that "bullying
using a new information technology . . . gives kids way more power than they've
had" (ibid.).
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CENSORING CYBERSPACE: CAN KIDS BE CONTROLLED?
The message that the battle is about power between schools and students
comes through clearly in many similar media reports -- and if the students are
getting too much power using new "technology," then the police will heed the
call to order and put them back in their place, using force if necessary.
Although the students in this case are also reported as having provoked police
officers (apparently throwing bottles and skateboards), it is the way that this
media report presents the sequence of events that is suggestive of who is wins
the battle when the heroes are brought in. Moreover, note the superintendent's
use of the word "technology" rather than "technologies." This is an example
of the adult mindset toward technologies that Lankshear and Knobel (2006)
have drawn to our attention. It implies that technology is a singular entity --
just like "digital literacy" can be controlled and managed -- suggesting a lack
of appreciation of its plurality and fluidity.
I want to emphasize again that I do not believe the students involved are
absolved of responsibility for their words and actions. I have already illustrated
this, using examples of the media reports that make the perpetrators look like
victims. This is the elusive fine line that always comes up between free expression and authority.
RECONCEPTUALIZING LAW IN CYBERSPACE
I have already discussed how the courts have significant impact on shaping
public policy within the context of my introduction to Chapter 1. Suffice it
to say that no matter how much the courts attempt to block the floodgates to
litigation relating to cyberbullying and various forms of cyber misconduct, they
can ultimately expect to rule on many such cases. I believe we are at the point in
lawmaking when century-old legal precedents, although they have some value
as shown in earlier discussions of cyber libel in Chapter 3, must be distinguished
from cases involving cyberspace. I believe that the multiplicity, permanence,
fluidity, and sheer breadth of cyberspace lends itself much more effectively to
a plurality of legal frameworks as I explained in Chapter 1. Unfortunately, the
initial response to cyberspace has been quite the opposite.
In Chapter 7, I look at some of the positivist legal responses that have
emerged in response to cyberbullying and consider them in the context of
the legal standards identified in earlier chapters to highlight the benefits of a
legally pluralist approach in addressing cyberbullying. That legally pluralist
framework is then incorporated into educational models, which are explained
in Chapter 8 with recommendations on how they would be more compatible
with the legal standards identified here.
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The Tragedy of the Commons: Lessons for Cyberspace?
Ruin is the destination toward which all men rush, each pursuing his own best
interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all.
(Harden, 1968)
According to Thomas McMorrow (2007), cyberspace, in some ways, works
much like a commons. Fulfillment of its potential presupposes maximum public access. In England, a commons is a place where cattle are herded to graze
together. Like the commons, cyberspace remains empty and frustrated without
collective human involvement. McMorrow explains that much in the same way
that herdsman bring their cattle to graze together on the commons, "mouse---
wielding drivers" (p. 2) of the Internet need to be brought together in an unconfined space. The unconfined aspect of that space is important. He observes
that the tragedy, or irony, of the commons resides in the fact the very principle of freedom of access on which it is based also inevitably leads to its des---
truction:
[A] space that all can enter is a space that all can abuse. Each herdsman in seeking to maximize her gain adds one more head of cattle, since the benefit of having one more of her cows grazing in the commons accrues to her alone, whereas the negative consequences of overgrazing must be borne equally by everyone. In the end, though, with each person trapped in this logic, the number of cattle grazing goes beyond what the commons can sustain, and the land becomes worthless to everyone. The problem is that while the herdsman feels compelled to increase her herd without limit, she wishes to do it in a world that is limited. No technical solution serves as an exit from this trap. Bigger commons or more resilient strains of grass only forestall the problem. The answer is not to be found in technology alone.
The only way the tragedy can be avoided is for people to change their behavior. Destruction of the commons is inevitable only so long as people only prize their short-term self-interest. The key is temperance but self-restraint within this context is not only 190
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difficult but ultimately ineffectual when it consists in a solitary act alone. What is needed is collective recognition of the mutual benefit of the commons, a genuine willingness on behalf of everyone to make the necessary sacrifice to secure the common good, and a general programme of action for everyone to follow. In other words, there need to be guidelines; for the promise of the commons to be fulfilled, there have to be laws.
(McMorrow, 2007, emphasis added)
McMorrow notes that, accordingly, if we imagine cyberbullying as a consequence of the licentious abuse of cyberspace, like overgrazing is an abuse of
the commons, and are looking to reduce, prevent, or altogether root it out, we
must acknowledge three important factors:
1. Any change in the status quo will ultimately rest on the decision of individual students to behave differently.
2. In order for any coordinated effort to be made (and only a coordinated effort
makes sense if the aim is to eradicate widespread abuse of cyber space) the
legitimate purpose behind cyberspace must be identified.
3. The purpose identified must be acceptable to the people who actually use
cyberspace. It does not make sense to elaborate a set of guidelines on the use
of cyberspace that presupposes a purpose that students themselves reject.
In other words, we cannot assume that students are going to engage in
cyberspace for educational purposes alone. While certainly we can help
them to appreciate cyberspace as an educational resource, in addition to
a social space where they can develop positive social relationships, education is about cultivating this attitude, which needs to be drawn out, and not
imposed.
This analogy is helpful to appreciate why we need mutually beneficial guidelines for the use of cyberspace. How is it useful to students? How is it useful to
adults? Within those categories are an enormous diversity of reasons. Hence,
although the purpose of the commons is singular -- namely, providing a place
where cattle can be brought to graze -- the purposes of cyberspace are numerous,
evolving, and ambiguous. This adds to the complexity of the role of educators
as the "herders" and educators. Their role is at once educative and normative.
While the cattle have one purpose, to feed themselves, the nurturing motivations
of students can be pluralistic.
Kids have established without a doubt that cyberspace can nurture their
social relationships, confidence, and sense of identity (especially as we saw with
girls in Japan and India). Moreover, their insistence on the fact that certain forms of online communication are beyond the realm of adult supervision suggests
that they perceive these spaces as providing them with autonomy, and agency to
change their lives. These are crucial considerations when setting guidelines on
appropriate uses of cyberspace. Students play an essential role in determining
their own learning and behavior. This was also evidenced in the cyber libel
and freedom of expression cases presented in earlier chapters, in which Lutes
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( Lutes v. Board of Education of Prairie View School Division No. 74, 1992), A. B. ( A. B. v. State of Indiana, 2007), and even Brad Parsons and Brad Koch asserted their right to express what they felt, using the genre of language that they felt best conveyed their opinions.
From a policy perspective, then, this suggests that to protect students from
cyberbullying or from encouraging sexual predators while affirming their
autonomy requires striking a fine balance. Van Praagh (2005) notes that "individual autonomy for children is elusive if premised on the notion of being left
alone" (p. 1348). Yet of course, we cannot be with our children all the time. As
they grow older, the time they spend by themselves will only increase. Constant
surveillance of their actions, whether in cyberspace or in the classroom, is not
only impractical, it is also harmful to their growth as human beings.1 Golding
(1954) demonstrated in Lord of the Flies that the disastrous consequences of subjugating children to constant external control are glaringly clear the instant they manage to slip out of our watch. The novel, as I have observed in earlier
chapters, evidences how aware children are of the power hierarchies that adults
construct both with them and among themselves.
LAW: A QUESTION OF INDIVIDUAL (STUDENT) DECISION MAKING
In calling for legally positivist (or punitive) responses to cyberbullying, stakeholders often forget that the classroom is not the only environment in which
children learn. Moreover, as teachers themselves acknowledge, they are not
the unique source of all learning, although, as the previous chapter highlighted,
teachers often attempt to control and construct knowledge through censorship.
Similarly, it is equally absurd to presume that the state legal order made up of
statutory provisions and court judgments is the only legal normative order to
which children are subject, and yet, as I have argued throughout this book,
the response to bullying and cyberbullying over the last decade or more has
been to clamp down, control, and stamp out the bullying through suspensions,
expulsions, and legislation that adds bullying to the list of criminal offences
that can result in fines and jail sentences (see Chapters 3 and 6).
As Lankshear and Knobel (2006), Jenkins and boyd (2006), and McMorrow
(2007) all observe, learning takes place at recess playing with friends, after
school watching TV, at the table having dinner with the family, in baseball parks
and on hockey rinks, in the evening surfing the Internet or social networking
spaces such as MySpace and Facebook, or at the library reading a book (not to
mention countless other spaces, interpersonal interactions, and points in time).
There are legal decisions being made throughout all these forms of learning.
Every time an individual human being makes a decision that can be symbolized
as being governed by rules (such as in a game of cards), they are making legal
decisions. McMorrow cites as an example a driver's choice to stop at a red light
rather than barrel through the intersection. His action may be symbolized as the
decision to follow a general rule that drivers are to stop at intersections when
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go to school rather than sleep in may be symbolized as the decision to follow a
general (normative) rule that students are to attend school. Of course, a specific
driver's decision to stop at a red light may in point of fact have much less to
do with any rule requiring him to do so and much more to do with the steady
stream of Mack trucks blocking the intersection. Similarly, the reason a student
makes sure to get up and out in the morning to school may have much less to do
with any law against truancy and much more to do with the fact she wants to
avoid seeing her abusive father before he returns from his night shift at work.
McMorrow observes that to say that in either of these latter two instances,
the driver or the student is following official state law is a hollow statement.
Although their behavior may converge with that prescribed by certain statutory
provisions, those same statutory provisions do not provide the normative basis
for their actions.
Although stiff penalties might be in place to ensure that the driver continues
to stop at red lights even when the coast seems clear (for the protection of
everyone who uses the roads) and that the student keeps attending school even
when her dad is not around (because schooling is accepted as a normative
requirement for children in society), it is more likely that the driver followed
the rules because he saw the Mack trucks lining up and recognized he risked
his life if he failed to stop at the light. Many of us are guilty of slowing down
at stop signs but failing to stop in certain instances when there is no other
traffic around. Yet in rush-hour traffic we automatically stop at all traffic signs because we recognize the higher potential of danger if we do not follow the
rules.
I use this example to argue that adolescents such as Brad and Bram discussed
earlier in the book will not stop cyberbullying or engaging in negative uses of
cyberspace because they know that they might be suspended by law. In fact, as
we saw, Brad's suspension did nothing to prevent him from gathering up his
friends to launch a protest. Similarly, Bram's suspension only made him feel he
was treated unfairly, leaving little room for remorse or consideration of why he
was suspended. Further, as we saw with A. B. ( A. B. v. State of Indiana, 2007), she was not afraid to challenge her school principal online and to chide him for not being able to do anything to her in cyberspace.
Even the most institutional legal positivist of the twentieth century, Hart
(1997) seriously criticizes this "order backed by threats" concept of law. He
believes that what makes law distinctive from other forms of social control is
its normative character. For law to be normative (indeed, for law to be law),
it must give rise to an obligation on behalf of the legal subject. The obligation
to comply with the law or rule must come from the individual. In this way,
Hart explains, when we speak of law, we necessarily speak of obligation. In
this sense, obligation involves recognition from a legal subject that he or she
ought to act in compliance with a particular rule. Hart's conclusion, therefore,
is that law functions as an affair of rules, not as a set of orders backed by threats (Hart, 1992, as cited in McMorrow, 2007).
Nonetheless, Hart, within the positivist tradition, also contends that it is
not a rule's normative content alone that makes it law but its satisfaction of
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formal conditions (Rule of Recognition). This means that for a norm to become
legitimate, it must be recognized by those officially charged with the task of
making laws, such as school or government policy makers, legislators, and the
judiciary. However, as society becomes more complex, this perspective becomes
too simplistic. As McMorrow (2007) asks, if all law sprang from one identifiable source and its prescriptions anticipated every human dilemma that was
known and understood by every individual, then Hart's interpretation might be
accurate. However, he observes that when we make prescriptive laws with the
threat of harsh punishment, we forget that "as much as people live in systems,
systems live in people" (McMorrow, 2007, p. 8). Prescriptive laws cannot anticipate every human dilemma. The interpretation of laws and rules, especially as
we have seen in previous chapters, are subject to contextual situations, power
hierarchies, and individual agency. In fact, this is specifically why constitutional and human rights provisions and school law in various states and provinces in
various countries are purposely broad in wording. Consider again, for example,
Section 76(3) of the British Columbia School Act (Canadian province), which
says that "the highest morality will be inculcated but school will be conducted
on a strictly secular and sectarian basis."
This section of the act has invited significant controversy over polemic
interpretations of what constitutes the "highest morality." For religious stakeholders, it constitutes a religious morality and as noted in the Surrey School
Board book banning controversy ( Chamberlain v. Surrey School District No.
36, 2002), this law was interpreted as supporting the morality that informs homosexual partnerships.
As Lon Fuller (1964) explains, the problem with a managerial conception
of law, such as the approach that school boards prefer, is that it assumes law
functions merely as the one-way projection of state authority onto its citizens.
Fuller argues that law is in fact much more interactive than the managerial
model assumes. In a managerial context, the subordinate follows the directives
he or she has been given to serve a purpose set by his superior, but the reasons
for following such orders are not always based on serving the sole purposes
of the manager. They have to be relevant and beneficial in many ways to the
subordinate. Fuller explains:
The law-abiding citizen, [on the other hand], does not apply legal rules to serve specific ends set by the lawgiver, but rather follows them in the conduct of his own affairs, the interests he is presumed to serve in following legal rules being those of society generally. The directives of a managerial system regulate primarily the relations between the subordinate and his superior and only collaterally the relations of the subordinate with third persons. The rules of a legal system, on the other hand, normally serve the primary purpose of setting the citizen's relations with other citizens and only in a collateral manner his relations with the seat of authority from which the rules proceed (pp. 207--208).2
These are important observations as they relate to the legalistic responses
to "manage" and "control" cyberbullying. Consider the following legislative
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and policy responses, all of which place too much emphasis on positivistic
approaches that threaten punitive consequences for noncompliance rather than
responses in keeping with an open and inclusive school climate (physical or virtual). Such school management approaches fail to take into consideration contextual influences, or the individual agency of students, educators, librarians,
and parents, toward whom such legislation is directed.
LEGAL AND POLICY RESPONSES: A FEW EXAMPLES
As noted earlier, Britain's largest teachers' union, the Professional Association of Teachers, called for the government to legislate the closing of YouTube
because it has attracted many negative postings by students against their teachers (Asthana & Smith, 2007). Until the teachers' union works out that censorship battle with British politicians, it is noteworthy that Britain already has
a comprehensive and informative Web site that specifically informs parents,
teachers, and other public stakeholders about cyberbullying, which I detail
shortly. In the meantime, readers will recall that the response to cyberbullying
in most of the international countries highlighted in Chapters 1 and 3 was generally of a legal positivist nature. These include implementing laws and policies
that seek criminal recourse including imprisonment or fines or civil recourse
with compensation under the common law of torts, such as cyber libel and
defamation. I have briefly mentioned legislation and policies implemented or
proposed by various countries such as Japan, Thailand, India, and Australia
in those chapters. The following legal and policy responses have emerged in
Western democracies.
Deleting Online Predators Act (DOPA; H.R. 5319, 2006)
In May 2006, a Republican Pennsylvania representative, Mike Fitzpatrick,
introduced the DOPA bill to the U.S. House of Representatives, with the intent
to protect children who use the Internet from online predators. However, there
are serious concerns that, if enacted, the bill would censor the autonomy of
school teachers and librarians to determine which Web sites are safe and place it
in the hands of a government-appointed commission. The bill's broad definition
of "social networking Web sites" can include Facebook, MySpace, YouTube,
and even Wikipedia, Yahoo, Amazon, and other informative Web sites, as well
as offending ones. The proposed bill amends the Communications Act of 1934.3
Wikipedia reports that similar bills to ban or restrict access to social networking sites have been introduced in Georgia and North Carolina. These bills would
impose criminal penalties on any social communications network that allows
children to join the chat room or communications network without parental
consent. When consent is granted, the Web site would also be required to give
parents full access to it. Oklahoma's House Bill 1715 (2007)4 would require
schools and libraries to block access to the Internet in its entirety for minors
who do not have consent. Similarly the Illinois Social Networking Prohibition
Act5 (State of Illinois, SB1682, 2007) would require all public libraries and
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schools to block access to any social networking site for users of all ages. These
proposed state bills are consistent with the recent demands made by teachers'
unions in Britain and, to a lesser extent, in Canada. According to Wikipedia,
the original legislation, the "Commercial Social Networking Web sites," was
much less restrictive and defined these sites as follows:
Sec. 2(c) (J) A commercially operated Internet Web site that:
(i) that allows users to create web pages or profiles that provide information about themselves and are available to other users; and
(ii) offers a mechanism for communication with other users, such as a forum, chat room, email, or instant messenger. "Chat rooms" were defined as:
Sec. 2(c) (K) Internet websites through which a number of users can communicate in
real time via test and that allow messages to be almost immediately visible to all other users or to a designated segment of all other users.
(Wikipedia, 2007c)
Popular Web sites that fit this definition include MySpace, Friendster, LiveJournal, and Facebook. According to Wikipedia, however, this definition could
also include a range of other informative and commercial Web sites, such as
Amazon and Yahoo.6 The proposed DOPA bill has been amended to read as
follows:
(J) COMMERCIAL SOCIAL NETWORKING WEBSITES; CHAT ROOMS
Within 120 days after the date of enactment of the Deleting Online Predators Act of 2006, the Commission shall by rule define the terms 'social networking website' and 'chat room' for purposes of this subsection. In determining the definition of a social networking website, the Commission shall take into consideration the extent to which a website is: (i) is offered by a commercial entity;
(ii) permits registered users to create an online profile that includes detailed personal information;
(iii) permits registered users to create an online journal and share such a journal with other users;
(iv) elicits highly-personalized information from user; and
(v) enables communication among users.
(Wikipedia, 2007c)
This new language allows a federal communications commission to define
the terms, and this might mean that it could even restrict Web sites such as
Wikipedia.
Wikipedia reports that although people on both sides of the debate are in
favor of blocking online predators, the larger controversy relates to the effectiveness and drawbacks of the measures being taken by the legislation. The
greatest concern involves censorship of the professional autonomy of teachers
and librarians.
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197
Wikipedia lists the arguments presented by both sides of the debate. The
Republican representative Michael Fitzpatrick and his supporters argue that
the Internet is taking over at a "dizzying pace" and that he as a parent has serious concerns about dangerous predators. The bill's proponents argue that the
Internet makes children comfortable talking to strangers, which is dangerous,
hence the need to restrict chat rooms and online social networks.
Opponents of the bill have focused on efforts to revise it to address directly
the problem of online predators and prevent blocking of harmless or educational Web sites. As Representative Bart Stupak summarized: "Unfortunately, child predators are not the target of today's bill. This will not delete
online predators. Rather, it will delete legitimate web content from schools and
libraries" (Wikipedia, 2007c).
In an interview in May 2006, Internet experts Henry Jenkins and danah boyd
were asked to provide their opinions on DOPA (Wright, 2006). According to
boyd, the proposed law would extend current regulations that require all federally funded schools and libraries to deploy Internet filters. She expressed the
concern that the law is so broadly defined, it would limit access to any commercial site that allows users to create a profile and communicate with strangers.
Although the partial intent of the legislation is to target MySpace, it would
also block numerous other sites, including blogging tools, mailing lists, video
and podcast sites, photo-sharing sites, and educational sites such as NeoPets.
Professor Jenkins agreed with boyd and explained that, in theory, the bill
would allow schools to disable these filters for use in educationally specified
contexts. Jenkins noted that, in practice, most schools would not bother to
implement the filters and instead would simply lock down their computers and
walk away because of the fear of being charged or fined under this legislation.
He believes that teachers who want to take advantage of the educational benefits of these tools would face increased scrutiny and pressure to discontinue
their educational practices. Likewise, students would lack the ability to explore
these resources through independent research or social activities. Moreover,
he explained that economic status reduces access to technologies because of a
lack of affordability in the home. Students who were already deprived of technologies at home because of insufficient financial resources would be further
affected in their learning. As it is, such students are generally left far behind
in their learning and ability to function in a world that thrives on technology
use. Because of its restrictions on library and school use, this legislation would
cut off any possibility for teens without access to computers at home, thereby
reducing their extended sphere of social contacts outside the school and home.
This supports Fuller's explanation as to the reasons people might obey the law.
If teachers and librarians are afraid of being fined, they will not be serving
the law to protect the protective interests of their students because they will
know that, in fact, DOPA would restrict access to programs and networks that
will benefit young people. They will lock down their computers because to
leave them turned on and not use the filters would not serve their individual or
professional purpose.
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Moreover, as boyd observed, most major technology companies are moving
in the direction of social software, using social features to help users find information, get recommendations, and share ideas. All of this would be restricted.
She argued that the assumptions underlying the proposed legislation are flawed
because proponents assume that nothing good can be achieved through participation in social networking cites. She observed that it would not be surprising
to find that none of DOPA's proponents have ever signed up to the sites and
really examined the potential that can be achieved. The underpinnings of the
legislation are therefore clearly rooted in the adult mindsets as presented in the paradigmatic approaches to technologies presented by Lankshear and Knobel
(2006). As an example of the restrictions that would occur even if the legislation
was limited to MySpace, boyd noted that many high school students currently
contact college students through MySpace to learn about their colleges and universities and decide whether to apply for admission. They develop mentorship
relationships that would be prohibited by DOPA. Professor Jenkins put this
into further perspective:
Suppose, for the sake of argument, that MySpace critics are correct and that MySpace is, in fact, exposing large numbers of teens to high-risk situations, then shouldn't the role of educational institutions be to help those teens understand those risks and develop strategies for dealing with them? Wouldn't we be better off having teens engage with MySpace in the context of supervision from knowledgeable and informed adults? Historically, we taught children what to do when a stranger telephoned them when their parents were away; surely, we should be able to teach them how to manage the presentation of their selves in digital spaces. The proposed federal legislation does nothing to help kids confront the challenges of interacting with online social communities; rather, it allows teachers and librarians to abdicate their responsibility to educate young people about what is becoming a significant aspect of their everyday lives. Our responsibilities as educators should be to bring reason to bear on situations which are wrought with ignorance and fear, not to hide our eyes from troubling aspects of teen culture.
(Wright, 2006, emphasis added)
In its descriptions of various Web sites, Wikipedia explains that many Web
sites allow public user profiles and provide forums. Examples include Yahoo,
Amazon, Slashdot, RedState, CNET Networks, and thousands of others. This
potentially qualifies them as social networking Web sites regardless of the content within the Web sites. Consider further some of the educational uses and
benefit of such sites.
Educational Use of Technologies
According to Wikipedia, most U.S. school libraries already have filters on
incoming Internet access because of the Children's Internet Protection Act
(CIPA; Wikipedia, 2007a). Opponents of the bill argue that the language of
the bill would simply extend such filtering to include Web sites on the basis
of specific technologies rather than specific content, including Web sites based
on those technologies that are used for educational purposes. Some educators
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have incorporated blogs and wikis (online information sites and communication
tools such as Wikipedia, an online encyclopedia that welcomes contributions by
a range of online users with expertise on specific topics), into classroom lessons
for students. These online resources are considered useful as critiquing and
editing tool for students' work and as a forum for comments and suggestions
by teachers and other students. These educators also favor such technologies
because they enable discussion outside of the classroom that can involve students and teachers as well as parents. Here are some examples provided on
Wikipedia relating to the educational benefits of such technologies:
Will Richardson, a teacher in New Jersey, set up a blog for student discussion of The Secret Life of Bees and invited author Sue Monk Kidd to join the chat. She was able to answer the students' questions about the book and give more insight than the teacher alone would have been capable [of ]. A separate blog was set up to allow parents to discuss the book in parallel with the students.
Some school administrators are using blogs to communicate news and information about events to parents and students. The homepage for the Meriwether Lewis Elementary
School in Oregon is updated with notes from the PTA. The principal and teachers are using blogging software to allow parents and students to view up-to-date information from the school.
The Pawtucket Public Library in Pawtucket, Rhode Island is one of a number of public libraries that have created their own MySpace profile webpage. These libraries are attempting to communicate with young adult patrons more effectively through the use of online methods to which young adults are becoming accustomed.
The Bering Strait School District relies heavily on a MediaWiki-driven curriculum content system. The district's Open Source student information system, DART, links its teachers and students directly to wiki content, as well as many RSS-fed district resources, podcasts, and vodcasts. Students have contributed many of the Wiki's 4,800 or so pages for academic credit during school hours. DART tells them what their key weaknesses are and [provides] links to the resources they need to help master those curriculum standards.
The bill would allow minors strictly limited access to those sites. For schools, access would be allowed only with adult supervision and if the site is being used for an educational purpose. For libraries, access would be allowed only if parental authorization is given and the parents are informed that "sexual predators can use these websites and chat rooms to prey on children."
(Wikipedia, 2007c)
Library Support for Online Education
The American Library Association, generally a strong opponent of censorship
involving books and literature, is also against introduction of the DOPA legislation. The association has asked its members to oppose the bill. The association's
former president, Michael Gorman, explains: "We know that the best way to
protect children is to teach them to guard their privacy and make wise choices."
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To this end, libraries across the country offer instruction on safe Internet use"
(Wikipedia, 2007c). On July 11, 2006, the executive director of the Young
Adult Library Services Association (YALSA), Beth Yoke, testified before the
Subcommittee on Telecommunications and the Internet under the Committee
on Energy and Commerce. She defined the ALA and YALSA combined stance
on the issue by saying:
Youth librarians believe, and more importantly know from experience, that education about safe Internet practices -- for both youth and parents -- is the best way to protect young people. We believe that the overly broad technological controls that would be required under DOPA are often ineffective given the fast-moving nature of modern technology. Further, such technological controls often inadvertently obstruct access to beneficial sites. In essence, we believe that this legislation will lead to the blocking of essential and beneficial Interactive Web applications and will further widen the digital divide.
(Wikipedia, 2007c)
As with the teachers, DOPA would censor librarians' professional autonomy
and local support from library trustees, elected school boards, and community
members and place it in the hands of federal commissioners who would have
no background or knowledge about the communities in which the libraries
were situated. Moreover, on the basis of our knowledge that the Australian
government spent $84 million on a similar filtering system that was quickly
shown to fail, it is likely that the costs to U.S. taxpayers of implementing DOPA
in the United States would be significantly higher.
It is important to emphasize again the lack of attention to context by this U.S. bill. Opponents of DOPA argue that this federal action could degrade the authority of those responsible for safe use of the libraries, whereas up to 80
percent of the funding for the library or school is locally derived (Wikipedia,
2007c).
Opponents of the bill have argued that the research presented by Representative Fitzpatrick in support of the bill had found only two cases of rape
or sexual assault through Internet solicitations in two surveys covering 3,001
children aged ten to seventeen. According to Wikipedia (Wikipedia, 2007c),
a Youth Internet Safety Survey suggested that, overall, the number of children being sexually solicited online in 2005 compared with 1999 has declined.
This suggests that Internet users are becoming more savvy in avoiding such
solicitations. Children aged ten to seventeen, however, are being harassed and
cyberbullied more by their peers -- not by strangers.
The European Union (EU) has taken a similar but more flexible approach to
the problem.
European Union
In Europe, although cyber safety of children appears to be an important topic,
action seems to be currently confined to research. Interestingly enough, the
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201
EU encourages legal action by nation-states. This is most likely because of
issues of sovereignty and respecting cultural differences as Europe deals with
an increasing influx of immigrants and refugees from its previous colonies. In
France, an existing bill on juvenile delinquency has been amended specifically
to deal with the problem of "happy slapping," which involves a physical attack
on an unsuspecting victim, which an accomplice tapes the act, usually with a
video phone, and then disseminates it by mobile phone or on the Internet. This
is discussed later in the chapter.
Council of Europe
The Council of Europe Media Division (Human Rights: Protecting Media Freedoms) has sponsored the production of an Internet Literacy Handbook. This
handbook contains a fact sheet on bullying and harassment that addresses how
cyberbullying and harassment are to be dealt with at school and at home. Under
the heading "Safety and Ethical Issues," the fact sheet proposes an approach
that includes conflict resolution as part of school curriculum, training staff and
students to deal with instances of bullying, provision of positive support to both
the students who are targeted and the students who are exhibiting such abusive
behavior, and the implementation of acceptable use policies to monitor how
the Internet is used in schools. It also suggests classroom activities such as roleplaying activities and discussion groups to deal with cyberbullying issues and
provides best practice instructions for students. The fact sheet on mobile technology also mentions the growing concern about mobile-bullying, specifically
happy slapping.
Council of Europe Draft Convention on Cyber Crime (2001, June 29)
There is a lot of commentary on the flaws of this document that could be used
to predict the possible difficulties encountered in trying to deal with cyberbullying at an international level. Criticisms largely center on the fact that it
focuses solely on law enforcement and is seen as detrimental to civil liberties
and industry interests. Also, the goal to attain consistency in legislation on
cyber crime among signatory states has lead to vague and ambiguous wording in the convention. It is also notable that although "cyber crime" is not
explicitly defined in the convention, it does not seem in this context, to include
cyber harassment, cyberstalking, or cyberbullying, addressing only computer---
related forgery and fraud. The only article that addresses the well-being of
children is Article 9, "Offences Related to Child Pornography."
Europe's Information Society: Public Consultation -- Safer Internet
and Online Technologies for Children
The European Commission is investigating the harm mobile phones do to young
children, including exposure to inappropriate content, expense, bullying, and
sexual predation. The commission mentions bullying "through the distribution of abusive or compromising messages and photos amongst children as a
particular concern." It was found in May 2007 that 70 percent of European
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children aged twelve to thirteen had mobile phones, as did 23 percent of eight
to nine year olds ("Europe investigates," 2006). The commission has launched
a public consultation with the aim of identifying the most effective way of
making the Internet and other communication technologies safer for children.
The return date for questionnaires was June 7, 2007, and these are most likely
being analyzed at the time of this writing. The introductory information to the
questionnaire mentions that children may be exposed to harmful content and
conduct, such as bullying and harassment, on the Internet. Interestingly, it also
mentions that, because the Internet is the primary channel for the distribution
of evidence of sexual abuse of children, children themselves may face serious
legal consequences for the distribution of such material. It is acknowledged that
means of addressing the risks involved with online technology use can involve
many actors, at many levels, including public administration in member states,
child-care organizations, the technology industry, financial institutions, schools, parents, and the European Commission. The European Commission has already
implemented a succession of Safer Internet programs, the most recent of which,
Safer Internet Plus, will end in 2008.
Safer Internet Plus Program
The current European Commission program (2005--2008) established by Decision No 854/2005/EC of the European Parliament has four main aims: fighting
against illegal content, tackling unwanted and harmful content, promoting a
safer environment, and awareness-raising. The fact sheet (European Commission, 2007c) defines harmful content as "any content that teachers, parents, or
other adults responsible for children, think is harmful to them." This leaves
little room to consider the agency of children, developing autonomy in children to decipher, weigh, and decide what harmful content might constitute and
making informed decisions against reviewing it online. The report also notes
that definitions vary from one culture -- and one person -- to the next. This
highlights one of the major difficulties attached to international action against
cyberbullying -- respecting cultural differences -- and yet this, I would argue, is
the most important aspect of the response. It is at least encouraging that the EU
is taking into account the personal and cultural differences in conceptualizing
its policy approaches.
The fact sheet also states that although the EU has set standards and clarified
many legal issues, Internet concerns cannot be tackled by law alone and are
generally far greater than parents realize. Concerted action is needed as greater
access to broadband Internet and third-generation (Internet) mobile phones are
becoming common.
Emphasis is placed on education of parents and children, with action at
member-state level essential but stimulated and encouraged by the EU. This
approach is commonly taken by the EU toward controversial topics (subsidiar---
ity). To respect sovereignty and cultural differences, the EU puts vague guidelines in place and allows the individual member states to implement the suggestions as they see fit. Ironically, in the case of the Internet and cyberbullying, THE TRAGEDY OF THE COMMONS: LESSONS FOR CYBERSPACE?
203
this approach runs into immediate problems because the Internet does not respect sovereign borders. An important aspect of this program is that is has a wide
scope covering diverse technologies such as third-generation phones, online
games, chat rooms, instant messaging, and peer-to-peer file transfer, as well as
also diverse content, including racism and violence. The drafters of the program
name networks of civilian hotlines as essential to combating cyberbullying
because many people are wary of contacting the police. The Safer Internet
Plus program currently funds a Project called EU Kids Online (European Commission, 2007a).The project, slated to run from 2006 to 2009, will examine
research carried out in eighteen member states on how children use the Internet
and new media. It aims to evaluate the social cultural and regulatory influences
affecting both risks and parents' and children's responses to them. One of its
main aims is to examine methodological issues relating to cross-cultural analysis
to establish best practice guidelines for research on children's Internet use. The
Web site has a data repository of empirical research projects concerning children and the Internet in Europe and encourages contact from other researchers
working in the same area. A biannual newsletter is also published.7
Legislation in France
In March 2007, the French government signed into law a bill amending previous delinquency laws, with the purpose of criminalizing "happy slapping"
(Wikipedia, 2007d). Article 44 of the Bill8 equates the filming or photograph---
ing of certain violent crimes with being an accomplice to that crime and creates
a new felony for the broadcasting of such crimes. Civil rights groups have
criticized this law as inhibiting people from recording incidents of police brutality or engaging in civilian journalism. This approach, unlike that in England
(described subsequently), addresses the harm caused by the filming and dissemination of such videos and not simply the harm caused the assault in question.
Canadian Responses
In the previous chapter, I discussed at some length a resolution that has been
drafted by the Canadian Teachers' Federation to develop policy responses to
cyberbullying (especially the antiauthority forms emerging on social networking sites). As far as existing legislation is concerned, education in Canada comes
under provincial jurisdiction, and some provinces have reacted in a similar
vein to American and European approaches. Ontario has been the most active
province in bringing in legislation to address bullying when it created the controversial Safe Schools Act in 2000. The Act gave teachers discretionary power
to suspend students indefinitely until a board of trustees could meet and decide
on whether they should be expelled. This raised concerns among parents as
to how the Act would affect students' education in the meantime. The Act
was then embedded into the Ontario Education Act, which has recently been
amended yet again to address the outcry by teachers and school administrators
about the antiauthority forms of cyberbullying on social networking sites. Bill
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212 of the Education Amendment Act dated April 16, 2007, at a first reading,
stated:
A principal shall consider whether to suspend if he or she believes that the pupil has engaged in any of the following activities while at school, at a school-related activity or in other circumstances where engaging in the activity will have an impact on the school climate.
(Roher, 2007, emphasis added)
This section is sufficiently broad as to cover the expressions about teachers
on Facebook and similar networking tools. Interestingly, although the amended
Act also adds "bullying" as allowing for suspension (and not expulsion), there
is no specific reference to "cyberbullying." Legal experts (R. Flynn, personal
communication, July 27, 2007) suggest this might be due to the controversial
issues raised by the student protests against infringement of their freedom of
expression when schools suspend them for what they perceive as "private"
conversations among friends.
When introducing the bill to the Ontario legislature, there was considerable debate as to whether the Act's definition of "bullying" includes "cyberbullying." The minister of education stated as follows on April 25, 2007:
One of the issues that came up most often after I introduced this legislation in the House was cyberbullying, and that changes to the legislation would include the possibility for schools to respond to behaviors that may not technically take place in school but that would have an adverse effect on the school climate. This is a reality our students are dealing with.
As I said, bullying is not currently listed as an infraction, and I believe it's about time we recognize the seriousness of these behaviors. I know there will be questions about definitions of bullying. We're going to work with the definition that was hammered out by the action team, and that will be finalized in policy guidelines. . . . During our consultation on bullying [with the Safe Schools Action Team], we were told that in many schools bullying was not taken seriously. We also learned that many students
are affected by bullying in its various forms: physical, verbal, social or, as is becoming increasingly common, internet bullying.
The action team provided a definition that covers all forms of bullying. Our reports define bullying as a form of repeated aggression used from a position of power, which can be physical, verbal or social. It is a dynamic of unhealthy interaction, and includes repeated aggression as opposed to just a singular incident.
(quoted in Khoday, 2007)
Although earlier chapters have talked about which forms of bullying are
taken more seriously than others, when the minister of education says it is
time to take bullying "seriously," she speaks within the context of legislating
bullying in the positivist sense that legitimizes suspensions for students who
engage in the forms of bullying she defines. I find it interesting that although
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205
this amendment was expedited as a result of the antiauthority forms of cyberbullying against teachers in Canada, neither the minister nor the amendment
make reference to this form, even within the definition. The focus appears to be
on peer-to-peer bullying. The minister's assumption is that the only way to take
bullying "seriously" is by legislating the response to it. She also contradicted
her earlier statements to the media which expressed her desire to move away
from a zero-tolerance approach, and yet the actions taken by the ministry are
more legalistic than supportive of educational programs to learn more about
how to address the issues. In this respect, the British government appears to
have been significantly more proactive.
British Responses
Considerable work has been conducted in Britain to address bullying and cyberbullying from a contextual and pluralistic perspective; however, these are complemented by positivist legislation that continues along the lines of the countries mentioned earlier. Hence Great Britain, like Canada, is sending confusing messages about what approach it considers best.
The government has published comprehensive guidelines for schools dealing with cyberbullying accessible at a Web site called Don't Suffer in Silence
(Department for Children, Schools and Families, 2007), which offers extensive information for children, parents, and school staff about cyberbullying.
However, the names of the legislation that it cites to help in addressing cyberbullying would suggest they are grounded in positivist law. Under the heading,
"What can you do about it?" it states, "The law is on your side" and that the
Protection from Harassment Act, the Malicious Communications Act 1988,
and Section 43 of the Telecommunications Act may be used to combat cyberbullying. A link is provided to a Web site called WiredSafety, one page of which
provides information on British law relating to cyberstalking and harassment
(WiredSafety, n.d.).
Under Section 1 of the Malicious Communications Act 1998, it is an offence
to send indecent, offensive, or threatening letters, electronic communication, or
other articles to another person; under Section 43 of the Telecommunications
Act 1984, it is a similar offence to send a telephone message that is indecent,
offensive, or threatening. In both cases, the offense is punishable with up to
six months of imprisonment or a fine of up to £5000. Because the malicious
communications offence is wider ranging than the telecommunications offence,
it is more likely to be used by the police than the Telecommunications Act
offence.
In most cases involving malicious communications or cyberstalking, however, there will be more than one offensive or threatening letter or telephone
call, and therefore the police will often choose to charge the offender with an
offense contrary to Section 2 of the Protection from Harassment Act 1997,
also punishable with up to six months of imprisonment. Part of the reason for
using this charge is that when someone is convicted of an offense under the
Protection from Harassment Act 1997, the court can grant a restraining order
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preventing him or her from contacting their victim again. Breach of a restraining
order is punishable with up to five years of imprisonment. A restraining order
cannot be imposed for a conviction under the Malicious Communications or
Telecommunications Acts.
If the e-mails, cyberstalking, and other forms of harassment that come under
cyberbullying cause victims to fear that violence will be used against them, the
police can choose to charge the offender with an offense contrary to Section 4 of
the Protection from Harassment Act 1997, which is punishable with up to five
years of imprisonment and also allows the court to grant a restraining order.
If the e-mails, cyberstalking, and other forms of cyberbullying are racist
in nature or motivated by religious hostility, charges of "racially or religiously
aggravated harassment" contrary to Sections 32(1)(a) or 32(1)(b) of the Crime
and Disorder Act 1998 can be brought against the perpetrators. If convicted,
offenders could face up to seven years imprisonment.
In many situations the recipient of malicious messages knows who the sender
is. It may be a former partner or a relative, which may mean that the victim is
reluctant to involve the police. In such circumstances, the victim could consider
taking out an Injunction under Section 3 of the Protection from Harassment
Act 1997. However, the Web site advises readers to always inform the police,
especially if the messages are in any way threatening. Even if the police decide
not to prosecute, they may give the offender a formal warning, which could be
used in evidence if perpetrators repeated their behavior in future.
In addition to pursuing criminal prosecution against offenders, victims of
harassment can sue the offender under Section 3 of the Protection from Harassment Act 1997 for damages arising out of the anxiety caused by the harassment
and any financial loss it caused.
The British Web site does not mention any cases that have been filed under
these forms of legislation in the context of cyberbullying. The focus of the various applicable legislative frames referred to on the British Web site is largely
punitive. Nonetheless, the Web site contains some important educational information for parents, teachers, students, and other stakeholders. For example, it
urges parents and young people to work together to prevent and "tackle" it
whenever it occurs. Some of the advice for various stakeholders contained on
the site provides that school governors and head teachers have a duty to ensure
that they include bullying via mobile phone and Internet in their mandatory
antibullying policies, that these policies are regularly updated, and that teachers have sufficient knowledge to deal with cyberbullying in schools. Significantly,
the policy guidelines recommend that
r All ecommunications used on the school site or as part of school activities
off-site are monitored
r Clear policies are set about the use of mobile phones at school and at other
times when young people are under the school's authority
r Internet blocking technologies are continually updated and harmful sites
blocked
THE TRAGEDY OF THE COMMONS: LESSONS FOR CYBERSPACE?
207
r They work with pupils and parents to make sure new communications technologies are used safely, taking account of local and national guidance and
good practice
r Security systems are in place to prevent images and information about pupils
and staff being accessed improperly from outside school
r They work with police and other partners on managing cyberbullying
r They provide accessible information, advice, and support for students who
need it
The site also recommends the British Educational Communications and
Technology Agency (Becta) schools e-safety site (Becta, 2007), which has excellent suggestions for the development of acceptable use policies in schools.
What I like best about Becta's suggestions is that creating a safe Internet communications technology (ICT) learning environment must include "an infrastructure of whole-school awareness, designated responsibilities, policies and
procedures; an effective range of technological tools; and a comprehensive
internet safety education program for the whole school community" (Becta,
2007). The Becta policy guideline suggests three basic components:
1. Raising awareness of the issues and how they impact the particular school
environment and the pupils within particular schools. They suggest that
awareness can be raised, in part, by a comprehensive Internet safety program for the entire school community. Importantly, the guidelines suggest
that the program should be continuous. Although it should respond to specific incidents and issues, it should also provide information about emerging
technologies, as well as those already embedded within the culture of the
school.
2. The second priority is to establish a clear understanding of the responsibilities of all stakeholders involved in the education of children and young
people with regard to Internet safety. This includes head teachers and school
principals, governing bodies (e.g., school boards), administrators, classroom
teachers, school counselors, librarians, parents, and, of course, the pupils
themselves.
3. The third priority involves an "infrastructure of effective policies and procedures" described as the "backbone to effective practice." Acceptable use
policies should detail the ways in which the ICT facilities can and cannot
be used in school by both pupils and staff. These documents should contain
a list of consistent sanctions, procedures, and support strategies for dealing
with misuse. Although these strategies would include management documents, staff use agreements, student and parent use agreements, policies for
educating staff and students on Internet safety issues, and specific procedures
for misuse, an important consideration is that the policies "need to balance
the desirability of fully exploiting the vast educational potential of new technologies with providing safeguards against risks and unacceptable material
and activities."
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In this regard, although it advocates some controls and filtering, it also suggests the need to balance this with an awareness of the potential and benefits
of new technologies.
Although the policy guidelines recommend wide-ranging coverage of fixed
and mobile Internet technologies, those provided by the school (such as PCs,
laptops, webcams, and digital video equipment), as well as technologies owned
by students and staff that are brought onto school property such as mobile
phones, camera phones, personal digital assistants (PDAs), and media players,
they should also recognize the important educational benefits of such tools.
Most important, the Becta guidelines recommend attention to the following:
Remember, also, that an effective internet safety policy needs to be tailored to the individual needs of your school. . . . Your policy must consider the particular circumstances of your school, such as race, gender, ethnicity and religious beliefs of pupils and staff, and factors such as the digital divide and access to ICT outside school, which may all have an impact upon the ways in which children and young people use the internet, and the types of potentially risky behaviors they engage in. It is not sufficient to merely take a template and insert your school name -- the policy will lack ownership and authority, and may leave your school open to risk. . . . To be truly effective, all school internet safety policies need to be regularly reviewed with all stakeholders and updated to take account of new and emerging technologies and changes in local circumstances.
Ideally, school internet safety policies should be embedded within a cycle of establish-ment, maintenance, ongoing review, modification, reporting and annual review, supported by technological solutions wherever possible. By following this process, schools can ensure that they have a rigorous and effective internet safety program in place.
(Becta, 2007)
These are important recommendations because research on the poor success
of traditional antibullying programs and policies was due to the lack of attention to individual differences within schools. Blanket antibullying programs
and policies were implemented without attention to cultural contexts, demo---
graphics, economic influences, and so on, with the result that they did little to
address the concerns or motivations of the students who perpetrated bullying
(Anand, 1999; DiGiulio, 2001).
Although it is not within the scope of this book to go through everything on
the British government Web site for parents, teachers, and other stakeholders,
the site is well worth a visit and, I would argue, quite advanced compared
with EU and North American responses as far as comprehensive information
and policy guidelines are concerned. Yet Britain's teachers' unions are loudly
calling for the banning of YouTube. Although I have not attempted to determine
whether many teachers in Great Britain access the government Web site, it
would be worth exploring the extent to which this site has been marketed to
educators and parents -- how many know about it and use its resources and the
extent to which schools are actually using it to develop their policies to address
cyberbullying in Britain. It is important to find out whether the tax payers'
dollars spent by the government on this Web site are successful in creating
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209
the awareness and providing comprehensive education to British schools and
parents. How many and how often are parents and students accessing this Web
site? In the following incident involving happy slapping, it is apparent that the
British government's Web site has made little difference.
Happy slapping is believed to have originated in London as part of the garage
music scene. Although there is no legislation specifically dealing with it as there is in France, assault charges have been made in certain cases. In one case,
a sixteen-year-old girl was seriously assaulted on her way home from school,
and the incident was filmed and posted online. Despite the fact that a significant
amount of the distress the victim suffered was due to the video being shown to
her peers at school, a school spokesman was quoted as saying simply that "this is
a police matter which happened outside school" ("Mother rages," 2005) When
dealing with the Internet and third-generation mobile phone technology, which
is accessible by students both inside and outside of school, such an approach
does not begin to deal with the problem.
BACK TO THE DRAWING BOARD
In this chapter, I have attempted to show that a legal positivist approach is
prevalent among educators and government policy makers and that this comes
through predominantly in official legislative and policy responses to cyberbullying. As explained in Chapter 6, this is a reflection of the deeply embedded normative structures and hegemonic perspectives that control and construct knowledge in schools (Shariff & Johnny, 2007). I have also argued using
McMorrow's (2007) analogy of the cyberspace as the "commons" that the challenges of educating children and supervising their social interactions demands
reconceptualization of what we mean by law and policy to control young people's actions. As Chapters 4 through 6 demonstrated, young people do not
make decisions about their expression or behavior in a vacuum. Their actions
are informed by biological and socializing influences and the varying contexts
in which they develop or adapt their identities. Children employ agency and
autonomy to make decisions about what they deem is acceptable online behavior. Moreover, when we bring issues of reputation, the right to state an opinion
or make legitimate comments about school policies or personnel, and the institutional obligation to provide positive school environments that are free of
discrimination (virtual and physical), it becomes clear that current approaches,
well intentioned and seemingly sensible to educators and politicians, are on
the wrong track. The objections to the DOPA legislation and the Australian
example of the teenager who cracked two government-mandated Internet filters within thirty and forty minutes, respectively (Higginbottom & Packham,
2007) make it clear that new or adjusted lenses are essential to inform the
development to policy and practice guidelines.
I now turn to my concluding chapter, in which I present alternate models and
perspectives rooted in a combination of critical educational, substantive, and
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THE TRAGEDY OF THE COMMONS: LESSONS FOR CYBERSPACE?
legally pluralistic perspectives that show greater promise of educating students
and school personnel about the complexities of cyberbullying by modeling and
supporting autonomous student decisions that will help them abide by the law
through their own agency and responsibility.
REFERENCES
Anand, S. S. (1999). Preventing youth crime: What works, what doesn't and what it all means for Canadian juvenile justice. Queen's Law Journal, 25, 177--249.
Asthana, A., & Smith, D. (2007, July 29). Teachers call for YouTube ban over "cyberbullying" [Electronic version]. Guardian Unlimited. Retrieved August 22, 2007, from http://observer.guardian.co.uk/uk news/story/0,,2137177,00.html.
Becta. (2007). What is an acceptable use policy? Retrieved August 23, 2007, from http://schools.becta.org.uk/index.php?section=is&catcode=ss to es pp aup 03
&rid=11087.
Department for Children, Schools and Families. (2007). Don't suffer in silence. Retrieved August 23, 2007, from http://www.dfes.gov.uk/bullying/.
DiGiulio, R. C. (2001). Educate, mediate, or litigate? What teachers, parents, and administrators must do about student behavior. Thousand Oaks, CA: Corwin Press.
Europe investigates dangers of mobiles to children [Electronic version]. (2006, July 27). Out-Law News. Retrieved August 22, 2007, from http://www.out-law.com/page-7141.
European Commission. (2007a, June 7). EU Kids Online. Retrieved August 23, 2007, from http://www.eukidsonline.net/.
European Commission. (2007b, February 2). Making the Internet a safer place: The safer Internet fact sheet [Electronic version]. Retrieved August 22, 2007, from http://
ec.europa.eu/information society/doc/factsheets/018-saferinternetplus.pdf.
European Commission. (2007c, July 31). Safer Internet plus programme. Retrieved August 22, 2007, from http://ec.europa.eu/information society/activities/sip/
programme/index en.htm.
European Committee on Crime Problems. (2001, June 29). Draft convention on cybercrime [Electronic version]. Retrieved June 29 from http://www.privacyinternational.
org/issues/cybercrime/coe/cybercrime-final.html.
Flynn, R. (2007, July 27). Private communication: Interpretation of changes to Bill 212.
In S. Shariff (Ed.). Toronto.
Fuller, L. (1964). The morality of law: A reply to critics. New Haven, CT: Yale University Press.
Golding, W. (1954). Lord of the flies. New York: Penguin Putnam.
Harden, G. (1968). The tragedy of the commons. Science, 162, 1243--1248.
Hart, H. L. A. (1997). The concept of law (2nd ed.). Oxford, England: Oxford University Press.
Higginbottom, N., & Packham, B. (2007, August 26). Student cracks government's
85M porn filter [Electronic version]. Herald Sun. Retrieved August 26, 2007, from http://www.news.com.au/story/02359922304224--421,00.html.
House Bill No. 1715, State of Oklahoma (2007).
Jenkins, H., & boyd, d. (2006, May 30). Discussion: MySpace and Deleting Online Predators Act (DOPA) [Electronic version]. Digital Divide Network. Retrieved June 12, 2006, from http://www.digitaldivide.net/articles/view.php?ArticleID=592.
THE TRAGEDY OF THE COMMONS: LESSONS FOR CYBERSPACE?
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Khoday, A. (2007). Bullying. Unpublished report produced as part of the International Cyberbullying Research Project, McGill University, Montreal, funded by the Social Science and Humanities Research Council of Canada (SSHRC). Shaheen Shariff, Principal Investigator.
Lankshear, C., & Knobel, M. (2006). New literacies: Everyday practices and classroom learning (2nd ed.). Maidenhead, England/New York: Open University Press.
McMorrow, T. (2007). Lord of the bullies: Advocating a student-centred approach to legal research into cyberbullying. Unpublished paper submitted for graduate course at McGill University.
"Mother rages at 'slap attackers'" [Electronic version]. (2005, May 19). BBC News Online. Retrieved August 14, 2007, from http://news.bbc.co.uk/2/hi/uk news/england/
manchester/4563419.stm.
Roher, E. (2007, April). Intimidation.com: Dealing with cyberbullying. Paper presented at the Canadian Association for the Study of Law in Education (CAPSLE), Conference, Vancouver, Canada.
Shariff, S., & Johnny, L. (2007). Censorship! . . . or . . . Selection?: Confronting a curriculum of orthodoxy through pluralistic models. Rotterdam, the Netherlands: Sense.
Van Praagh, S. (2005). Adolescence, autonomy and Harry Potter: The child as decision-maker. International Journal of Law in Context, 1, 335--373.
Wikipedia. (2007a). Description of the Children's Internet Protection Act. Retrieved August 23, 2007, from http://en.wikipedia.org/wiki/Children%27s Internet Protection Act.
Wikipedia. (2007b). Description of the Communications Act of 1934. Retrieved August 23, 2007, from http://en.wikipedia.org/wiki/Communications Act of 1934.
Wikipedia. (2007c). Description of the Deleting Online Predators Act of 2006. Retrieved August 23, 2007, from http://en.wikipedia.org/wiki/Deleting Online Predators Act of 2006# note-thomas# note-thomas.
Wikipedia. (2007d). Description of happy slapping. Retrieved August 23, 2007, from http://en.wikipedia.org/wiki/Happy slapping# note-9.
WiredSafety. (n.d.). Cyberstalking and harassment. Retrieved August 23, 2007, from http://wiredsafety.org/gb/stalking/index.html.
Wright, S. (2006 (May 26)). MySpace and Deleting Online Predators Act (DOPA)
[Electronic version]. MIT Tech Talk. Retrieved August 13, 2007, from http://www.
danah.org/papers/MySpaceDOPA.pdf.
Cyber Collaboration: Models for Critical Legal
Pluralism in Teacher Education Programs
A legal rule is legitimate only to the extent that it can capture people's imaginations and make them believe it is worth engaging with and participating in the normative framework proposed. Moreover, the legitimacy of a legal rule depends on a
minimum functionality common to all rules: its capacity to effectively capture, shape, and refract parties' perceptions of problems. In brief, a legal rule ceases to be a command and instead becomes a hypothesis of action and interaction.
(Macdonald & Kong, 2006, p. 22)
In Chapter 7, I explained that according to Hart's (1997) legal positivism perspective, the task of the legal subject is simply to follow the list of instructions that have been stamped and certified as the law in accordance with the principles of legality. Consequently, legal subjects are presented as being similar to employees in a company who carry out the tasks they have been assigned
by their manager not out of fear of punishment but, quite simply, because the
boss says so. In the educational context, this is doubly problematic because as
important as it is for there to be a certain level of order in the way students
communicate online or in class, if that level of order comes at the expense of
students being able to develop a healthy ability to question formal authority,
then they will miss an important lesson in their development, both as thinkers
and citizens.
In other words, the "do as I say because I said so" approach defeats the
purpose of educating students about why certain forms of expression, even
when they are stating an opinion, might be less hurtful and demeaning if they
are not couched in sexual and homophobic language. As I illustrated in Chapter
7, the zero-tolerance response to bullying and cyberbullying is rooted in a
positivist paradigm, originating in a military model that leaves no room for
dialogue or discussion. The newspaper headlines, framed to sensationalize the
issues, reflect the clear intent of educators and policy makers to "clamp down,"
212
CYBER COLLABORATION
213
"win the war," and ban student expression. This does not make students feel
valued as intelligent or thinking citizens of society.
As the strong opening quote in this book illustrates, it is adults who model
and sustain the very forms of violence and discrimination, the barriers of intersecting and interlocking forms of racism, sexism, homophobia, and ableism,
that are reflected in the attitudes and expressions conveyed by their pupils
online. Cyberbullying, especially in its antiauthority form, is nothing new. It
strongly mirrors the symptoms of an adult society that has been infected by
systemic and hegemonic hierarchies of power that often play themselves out as
violence, whether verbal or physical. Simply because these forms of violence
are regularly depicted in adult movie productions and in video games does not
negate that adults create such productions based on actual adult behaviors.
This reinforces the fact that our society accepts and thrives on violence and
enjoys the corporate and financial benefits it reaps from its popularity.
It is therefore ironic that when young people reflect the behaviors and attitudes modeled and reinforced by adults, those very adults clamp down on such
behavior and snuff it out -- or at least, sweep it under the carpet lest the education system is perceived to be failing its mandate.
As I asked in Chapter 1, what is the mandate of educators in a world that
is rapidly changing as a result of evolving technologies and digital literacies?
If I say that our mandate is to develop socially responsible, confident, civic---
minded, and contributing citizens in society, my words may sound as hollow as
the school policies and mission statements that talk about "fostering inclusive
school environments" or using acronyms such as the three "Rs" for "respect,"
"responsibility," and "rights. These lofty goals are easier said than done, as I
have attempted to illustrate in highlighting the complexities. It is difficult to
achieve a balance when navigating between stakeholder rights and interests in
physical and virtual space. Yet at no time has it been more important to reconceptualize the way we understand and deliver knowledge, administer schools,
or apply certain rules and laws to manage the "commons" of physical and
cyberspace all at once. As Golding's (1954) island demonstrates, when anarchy
already exists in society, it is not difficult to understand why future generations behave the same way. In other words, the boys' relationships on that
island without adults broke down because these young people were simply the
products of the society that raised them. Hence, if we are to make a difference
in addressing the issues of laws and rules in cyberspace, we need to come at
the issues from a different perspective. Little progress can be expected, unless
competing stakeholder rights and interests are addressed through critical and
pedagogically informed programs and policies. Teachers and school administrators need to be better equipped not only to address contemporary dilemmas
but also to dig deeper to reach the heart of a societal problem. Teacher education and professional development programs have, to date, done a poor job
of equipping educators to navigate stakeholder claims. The Internet and digital
literacies have complicated matters even further.
214
CONFRONTING CYBERBULLYING
A TYPOLOGY OF LAWS: COMPREHENSIVE LEGAL FRAMEWORKS
Elsewhere (Shariff, 2008), I have noted that to develop a cohesive and collaborative stakeholder approach to addressing the dilemmas of cyberbullying, a
pragmatic shift is necessary. Such a shift ought to inform the way we conceptualize issues of censorship and cyberbullying. Key gaps that are evident in the
cyberbullying controversies include the following:
1. The need for informed and improved teacher education and professional
development of school officials and policy makers.
2. The need to level the power hierarchies among stakeholders to reconceptualize schooling through collaborative and nonrestrictive learning approaches.
It is important that these are grounded in a comprehensive foundation of
digital literacies, critical pedagogies, leadership, and substantive law, such
that we learn together with children and take advantage of the enormous fluidity, capacity, and communicative and learning potential that contemporary
technologies provide.
3. The need to canvass a typology of laws instead of rooting all our responses
in positivist and reactionary policies, to instead identify and clarify a range
of standards that can reasonably be expected of educators and students, as
I have done in Chapters 3 to 5.
As McMorrow (2007) explains:
Such a conception of law [a typology of laws], one that eschews formal state recognition of a norm as a precondition for its "legality," allows for a much more pluralistic approach to legal inquiry. Even if the primary goal of one's research is to figure out how a statutory provision ought to be changed to better address cyber bullying, it is necessary to understand the implicit and inferential norms to which students advert in deciding how to behave. A typology of legal norms, orders, processes, methodologies and institutions sensitizes us to the inherent plurality of legal normativity and underscores just how arbitrary a single formal criterion for legality necessarily is.1 This typology may be graphed along two axes, one representing law's sites and the other law's modes. First, the site of law (its manner of elaboration) may be explicit or implicit; this depends on whether the norm came into being as a result of a deliberate creative process or not.
The mode of law (the way meaning may be extracted from norms) comprises the second
axis of this normative typology; this relates to how a given norm is articulated.
On the one hand, there are formal norms that are presented canonically and typically reflected in words like those of a statute. However, a formal norm may not necessarily be explicit in terms of the fact they may never have been consciously elaborated. Thus, norms derived from commercial practice are at once formal and implicit. In contrast to canonically formulated norms, there are inferential norms. Unlike formal norms, these do not possess a fixed textual or practical formulation. Thus, judicial decisions constitute examples of explicit yet inferential norms. While the courts are conscious of the fact they are elaborating legal norms, the ratio decidendi of a court judgment cannot be reduced to a precise rule through the simple application of a succinct formula; it must be inferred from the entire text of the judgment. Inferential norms may also be implicit. For example, the general principles at the foundation of a normative system CYBER COLLABORATION
215
like justice or equity are fluid concepts that are nowhere either written out or summed up in canonical form.
(pp. 10--11)
Put in layperson's terms, this description supports my position for a pluralistic and contextual understanding of how the law is developed, formalized
through statute or common law (judicial interpretation), interpreted by judges
within a range of legal frameworks and normative constructs, interpreted by
policy makers, and implemented as policy decisions. Hence my review and analysis of case law and statutory measures as presented in Chapters 3 to 5 was
purposely designed to illustrate that the law is not singular; that it is developed, interpreted, applied, and rooted in a range of normative and legal doctrines
and frameworks; and that it must be interpreted and applied within the sociological contexts that it governs. Just as Lankshear and Knobel (2006) argue
for a pluralistic and sociologically grounded approach to understanding and
implementing digital literacies, so, too, it is essential, in my view, that legal
and policy responses to cyberbullying be understood and implemented within
a comprehensive, contextual, and pluralistic framework if such responses are
to be useful at all. At the risk of oversimplification, I have tabled some of the
legal standards extrapolated under various legal frameworks in Chapters 3 to
5, and combine them here (see Table 8.1). However, simply laying out a set of
legal standards for educators and policy makers, many of whom have minimal
background in law, is not sufficient.
I propose a formula for teacher education and professional development
that incorporates these standards into a model that combines critical legal literacy grounded in substantive and legally pluralistic modes of law, as well as
educational theories grounded in critical pedagogy and leadership. Together, it
is plausible that these will better prepare educational professionals to develop
informed, thoughtful, nonarbitrary, ethical, and legally responsible solutions
and policy responses to cyberbullying, without having to engage in legally
positivist models and zero-tolerance battle with kids or technologies.
A CRITICAL LEGAL LITERACY
Although initiatives promoting law-related education over the last two decades
have provided schools with a significant amount of information in the form of
pamphlets and "how-to" manuals, school administrators rarely refer to them,
or they wait to do so until they have a crisis (Shariff & Strong-Wilson, 2005). I propose that what is needed instead is critical legal literacy -- a way of educating teachers and school administrators about substantive and pluralistic legal principles that make sense in their everyday professional practices. I propose a
Critical Legal Literacy Model (Shariff 2007) for teacher education and professional development of school administrators that combines knowledge of legal
principles that are relevant to educational policy decisions.
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217
218
CONFRONTING CYBERBULLYING
Moreover, all legal research presupposes a certain conception of law.
Although it is possible to base legal research related to cyberbullying on the
theoretical foundations of institutional legal positivism, such an inquiry is confined to statutes passed by legislatures and decisions handed down by courts
in certain state jurisdictions. It ignores the substantial scholarship illustrating the deficiencies of such an approach to understanding law that I have presented
throughout this book, particularly in Chapters 6 and 7. Of course, it is one thing
to show that as far as legal theories go, a critical legal pluralism is preferable to institutional legal positivism. However, my research projects on cyberbullying
are expressly directed toward elaborating a set of policies that address an audience of educators, not legal theorists. If educators ordinarily understand law in
the institutional legal positivist sense of the word, then why go to the trouble
of justifying an alternative such as my critical legal pluralist approach to understanding law as enumerated in Table 8.1 and Figure 8.2? The reason is that the
prevalence of institutional legal positivist thinking among educators is precisely
what stands in the way of any effective implementation of policy objectives, no
matter how well informed and articulated those objectives may be.
My Critical Legal Literacy Model illustrates why positivist legal background
on its own is not enough. Multidisciplinary pedagogical elements and an understanding of substantive legal principles model are also essential for the success
of this approach. Accordingly, I suggest educational perspectives that teachers
and policy makers can easily identify as congruent or compatible with the legal
principles identified in Table 8.1. In the last eight years of research and teaching about the intersection of law and education, I have developed the Critical Legal
Literacy at preservice and graduate levels that serves my students well. Although
qualitative studies on the effectiveness of this model are yet to be conducted,
practicing teachers and administrators who currently work in the field, as well
as prospective teachers and school administrators who attend my courses, comment on its practicality and utility. Moreover, this approach helps educators gain
an improved conceptual understanding of their legal obligations to students
and critically assess the role of their own agency and assumptions in decision
making. The Critical Legal Literacy approach is illustrated in Figure 8.1.
I also introduce two models and a concept map that were developed as part of
my preservice teacher education and professional development at McGill University over the past four years. I believe these models contribute significantly to meeting not only the legal responsibilities outlined in Table 8.1 but also inform
the development of proactive and collaborative policies on cyberbullying at
international levels.
A CRITICAL LEGAL LITERACY MODEL FOR TEACHER EDUCATION
My Critical Legal Literacy Model is grounded in a conceptual understanding
of substantive legal principles and legal pluralism. These are not the same as
the positivist or punitive aspects of law that on which educators tend to rely.
CYBER COLLABORATION
219
Policy and Leadership
Theories on discretion
Crucial to:
Transformational
Stakeholder Model
Pluralism
Emancipatory
Power Structures
Core Philosophy
Ethical
Trust & Agency
Policy Development
Critical
Implementation
Emergent
Theories on Social
Justice = Equality
Critical legal
Racism
literacy &
Sexism
Classism
legal pluralism
Ableism
Curriculum Theories
Educational Theories
Policies
Foundational
Critical Pedagogy
NonArbitrary
Historical
Ethical
Critical Media Literacy
Educational
Contemporary
Ethics of Justice
Legally Defensible
figure 8.1. Critical Legal Literacy Model (Shariff, 2006).
Such reliance leads to assumptions among teachers and school administrators
that the law has no place in pedagogy or educational policy. Let me elaborate
on the model:
Legal Literacy
Legal literacy for educators prepares them to apply substantive legal principles
that inform the fundamental ideals of democracy and civil behavior toward
others. Through discussion and analysis of case law that provides various educational, programmatic, and policy challenges, the model includes competing
rights and stakeholder conflicts such as the free expression and privacy debate
in cyberspace. Teachers learn to apply practical exercises and knowledge to
an improved understanding of the legal standards included in Table 8.1. More
specifically, teachers gain a hands-on understanding of what we mean when we
talk about equality; freedom of expression; freedom of religion on conscience;
the right to life, liberty, and security; the right to be free from unreasonable
search and seizure; and so on, in a constitutional sense, by working through
case studies and legal analysis. They learn the extent of their responsibilities of supervision under tort law as in loco parentis and their obligations as "careful and prudent parents." My approach gives teachers an opportunity to learn how courts balance and weigh competing rights and how this balancing of
rights and responsibilities is an integral aspect of running a democratic school
system.
I find it disturbing that so few teachers and school officials have a minimal grounding in substantive law. This limits their understanding of law as an
instrument of control -- which requires them to handle every situation through
220
CONFRONTING CYBERBULLYING
adversarial, punitive, and positivist solutions. As I explained in earlier chapters, censorship and didactic control of what children learn in schools contributes
to the discriminatory and demeaning attitudes that rear their ugly heads in the
content of student expression (cyberbullying) against peers and teachers. Elsewhere (Shariff & Johnny, 2007), I have written that many of the comprehensive
perspectives and forms of knowledge omitted from our school system are censored either behind closed doors or in such a skillful way that it is not always
obvious. For example Apple and Christian-Smith (1991), in their discussion of
learning materials, remind us that textbooks are the product of a selective tradition -- "someone's selection, someone's visions of legitimate knowledge and
culture, one that in the process of enfranchising one group's cultural capital
disenfranchises another's" (p. 4). Although these scholars concede that some
modern texts have aimed to incorporate multicultural perspectives, they argue
many of these perspectives are only mentioned in passing rather than discussed
in any great depth. Moreover, Taylor argues that when the reality of another
is not adequately represented it can lead to a sort of social oppression. He
states:
Equal recognition is not just the appropriate mode for a healthy democratic society. Its refusal can inflict damage on those who are denied it. The projection of an inferior or demeaning image on another can actually distort and oppress, to the extent that the image is internalized. . . . Race relations and discussions of multiculturalism are under-girded by the premise that the withholding of recognition can be a form of oppression.
(Taylor, as cited in McDougall & Philips Valentine, 1999, p. 335)
The manner in which knowledge is constructed for our school system is
undoubtedly an important consideration for how we understand and define student expression and acceptable forms of communication. Take, for instance, the
work of scholars such as Montgomery (2005). He found in his exploration of
racism in schools that although Canadian history textbooks seem to acknowledge examples of racism, it is presented as isolated occurrences that take place
only among exceptionally flawed individuals. He argues that "this depiction
of Canada as a space of vanquished and managed racism . . . perpetuates
mythologies of white settler benevolence while it at once obscures the banal
racisms upon and through which the nation state is built and rebuilt" (p. 439).
Such examples remind us that censorship is not only about what is banned
from our schools but also how information is presented. Obscuring the reality
of marginalized groups in official textbooks can certainly have significant ramifications for society because, as Inglis (1985) notes, "a curriculum is no less
than the knowledge system of a society and therefore not only an ontology but
also the metaphysics and ideology which that society has agreed to recognize
as legitimate and truthful; it sets the canons of truthfulness" (p. 22).
As I reported in censorship studies (Shariff & Manley-Casimir, 1999), principals, teachers, secretaries, clerks, and other school employees often take it
upon themselves to self-censor books and educational resources. Sometimes
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"offending" pages are torn out of books or blacked out. Hence it is not surprising, as Lankshear and Knobel (2006) observe, that educators transport this
mindset to online learning and expression. To address these uses of agency and
discretion and begin to incorporate elements of trust and student empowerment,
the type of professional development and teacher education model I recommend
in Figure 8.1 is grounded in legal literacy and legal pluralism. This combination
takes into account "cultural specificity" (Macdonald, 2006). When applied, the
model draws on a range of educational theories that are largely informed by a
critical perspective. Using the Critical Legal Literacy Model, prospective teachers, graduate students, and school administrators learn to assess critically their
own agency and leadership approaches, question their own assumptions about
student differences, and apply them to the legal literacy framework. This exercise helps them determine whether they in fact bring a hegemonic perspective
to their teaching, supervision, and administrative duties, including discipline
and punishment for the forms of expression that underpin bullying and cyberbullying.
PRACTICAL SOLUTIONS: ONLINE LIMITATIONS
Teacher education and professional development programs need to integrate
and apply the foregoing approaches with more practical attention to digital
literacies. Developing familiarity and confidence with digital literacies ought to
be a key element of these courses. Media literacy experts can be called in to
support such programs on an ongoing basis and work with prospective teachers
and school administrators to identify online resources in a range of teaching
subjects. Online educational initiatives might include:
r Hands-on Internet research strategies and links to useful resources;
r Blogs that discuss civil liberties such as freedom of expression, limits on free
speech, and a range of current affairs and world politics;
r Legislation, policy information, and links to case law where pupils learn to
contribute to policy development;
r Educational Web sites on a range of subjects such as art, architecture, history,
and the natural sciences;
r Online writing competitions;
r Links to scientific and medical journals;
r Links on music and cultural information;
r Links to video games such as Second Life with a view to encourage team
building and cooperation among online avatars and opportunities to deconstruct the objectives of violent online games.
Experts in digital literacies need to be invited to engage in hands-on practice
with prospective teachers to guide them on how to develop resource databases
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of useful Web sites, so that slowly they can overcome the restrictive mindset
and integrate digital literacies as a normal part of their everyday teaching.
In Canada, the Media Awareness Network (www.mediawareness.com,
"MNet") has developed teacher education programs that they license to school
boards. These programs include introductions to constitutional and human
rights law, as well as criminal justice issues relating to youth, all of which use
the Internet interactively, so that teachers develop proficiency with it. This nonprofit organization has also developed excellent interactive online resource lists
that help young people critically assess their social relationships and attitudes
online. For younger students, it has created an interactive game called "Privacy
Playground: The First Adventure of the Three CyberPigs" and "CyberSense and
Nonsense: The Second Adventure of the Three CyberPigs" (Media Awareness
Network, n.d.).
For older students, they have also developed an interactive educational program that addresses online hate that has been licensed to approximately eighty
school districts across Canada (Steeves & Wing, 2005). I am working with
MNet to develop in-depth lesson plans for prospective teachers and high school
students on children's rights, ethical online communication and moral codes
of social communication, tort law and cyber libel, tort law and negligence in
supervision, criminal law as it relates to online threats and harassment, and
constitutional and international human rights provisions. The organization is
also developing networks with the Canadian Girl Guides association and the
Canadian Red Cross on antibullying education focusing on respect. In this
connection they are launching an enormous public awareness campaign. MNet
works with kids' help phone lines in various provinces across Canada and
are members in PREVNet, an academic networking organization that brings
together researchers interested in young people's social relationships, nationally and internationally. Other initiatives under consideration include online
mediation among youth groups, and youth experts who work with adults to
show them how to navigate the Internet.
We must engage young people in the rule-making aspects relating to responsible use of new technologies and work with them (on a consistent and supportive
basis) to help them think critically about the consequences of their actions for
the victims, their own education, and their families. In this context, the international work of TC2 (the Critical Thinking Consortium) directed by Professor
Roland Case (as cited in Shariff & Johnny, 2007) is highly applicable. The
consortium works with schools and teachers to infuse critical thinking into
the curriculum, whereby students are presented with contentious scenarios and
taught the tools to help them to make reasoned judgments about their actions,
attitudes, and responses in specific situations. As Willard (2005) suggests, in the cyberbullying context, it is of crucial importance that we provide the supports
to help young people reconnect with their sense of ethics, so that they can think
critically about the impact of their online actions and attitudes.
Similarly, in the United Kingdom, the Teacher Resource Exchange Web site
(British Educational Communications and Technology Agency, n.d.-b) allows
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for exchange of online resources developed by teachers, as does the Becta online
resource directory for teachers (British Educational Communications and Technology Agency, 2007). Awards are given to schools that incorporate and raise
awareness of ways to integrate digital literacies in schools (British Educational
Communications and Technology Agency, n.d.-a).
Moreover, the examples from the American Library Association in response
to the proposed Deleting Online Predators Act of 2006 bill in the United States
in Chapter 7 suggest that libraries can be instrumental in developing adult
online proficiency. This expertise can, in turn, support children's use of online
tools. The range of online educational resource guides is expanding every day
as information technology experts join with educational pedagogues, librarians, and academics to develop improved access and proficiency on digital
literacies.
It is not within the scope of this book to list all online resources because
these proliferate on a daily basis. However, it is important to cite one important study by library scientists who engaged children in the development of a
Web portal for peers. Large, Nesset, Beheshti, and Bowler (2006) embarked
on a research study that investigated three challenges to developing Internet
resources for classroom use. They wanted to determine how elementary school
students use Web portals to find information in support of class-based projects.
They also examined what constitutes an effective Web portal design for elementary school students. Finally, they wanted to know whether intergenerational
design techniques could be used to design such a Web portal. The study used
two intergenerational teams: one team comprising three researchers and eight
Grade 6 students; the other team the same three researchers and six Grade 3
students. The teaching team under this project designed a low-tech Web portal
prototype. The research was conducted in a public elementary school located
in a middle-class suburb of Montreal.
Subsequently, the two low-tech portals were converted into working prototypes to search the Web for sites in English or French relating to Canadian
history. The portals were evaluated by single-sex focus groups comprising children in Grade 6 and Grade 3. The researchers report that overall, these users
responded positively to both portals and said they would choose to use them
over other well-known portals such as Google or MSN if seeking information
for a project on Canadian history. Drawing from a literature review of Web
portal design that incorporated user-centered design methodologies, contextual
design approaches, and learner-centered approaches, the designers developed a
new methodological framework called "bonded design," because they believed
this term encapsulated the essence of what all members of the design team experienced. The team included eleven individuals in one case and eight in the other.
They were divided into two groups: the children and the adult designers. Each
group brought special and unique expertise that was essential to the successful
completion of the team's task. The children were "experts in thinking like children" (Large et al., 2006, p. 78) and represented the user community for which
the two portals were being designed.
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The researchers explain that adults frequently cling to the illusion that they
understand how children think and behave. They suggest that this misconcep---
tion arises from the fact that they were themselves once children or that they
have children of their own through whose observation they can generate a
child's view of the world. They wanted to test their hypothesis that emergence
from childhood is irreversible and that if adults want to understand children, the
best way to do so is to work alongside them as collaborators. The researchers
explain:
While the children were involved alongside adults as team members, each with an equal voice, not every voice sang the same song. The children were novice users. Of course they had a critical expertise -- they understood how children think and behave -- but they knew little about Web portals or the design process. In contrast, the adults had expertise in portal design and functionality but could not think like children. Furthermore, there can be no denying that it was the adults who set the agenda, designed the initial research plan, and determined such important details as the length, content, and organization of sessions. Although the atmosphere in the design sessions was relaxed and informal, when required, it was the adults and not the children who brought things to order.
(Large et al., 2006, p. 78)
If considered in terms of adults' fear of losing control, this model illustrates
that children need direction from adults even in situations in which the adults
may not necessarily have a great deal of expertise. Nonetheless, the learning
took place both ways:
From the perspective of all team members -- adults as well as children -- the design
process was evolutionary. By the final sessions, the adults had a better understanding of the children's perspectives, and likewise the children were much better informed about portal functionality, design, and working as a team. This introduces an irony: The children are involved in the process because they think as children and not as designers, but gradually as they acquire more knowledge they become potentially less representative of their peer group.
Neither the children nor the adult designers alone, then, could have accomplished the design task facing them---to design two Web portals appropriate for young information seekers. But when these two disparate groups were bonded in the design teams, they were able to draw upon their relative strengths and achieve something neither could do in isolation.
(Large et al., 2006, pp. 78--79; emphasis added)
These are the kinds of initiatives that I believe need to be considered. The
strengths that each intergenerational team bring to the collaboration allow participants to develop a strong sense of bonding and mutual respect. The essence
of the bonded design brought together by Large and his research team is a means
of bringing together intergenerational members of a team that unites despite the
diversity of its members. The team includes adult experts in design and children
who are "experts" in the sense of knowing what online requirements children
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might have. The adults and children work together throughout the design process. The authors note that like cooperative inquiry, bonded design emphasizes
an intergenerational partnership in working toward a common goal.
It also ensures that children play an active role in the Web design, giving them
a sense of agency and confidence that they would not experience if they were
merely evaluators or testers at the end of the design process. The researchers
explain that bonding design also shares aspects of learner-centred design in that
it provides a learning environment for all team members -- children and adults
alike. Learner-centered design assumes that everyone is a learner, whether a professional or a student. In designing Web portals for children, the team's objective was to make sure that the design incorporated the interests, knowledge, and
styles of the child users for whom it was built. Although they shared reservations about the true equality of children alongside adults in a design team, they
concluded that cooperative inquiry was the central focus in the involvement of
children from the beginning to completion of the design process.
The researchers explain that bonded design is essentially situated between
cooperative inquiry and informant design. It is dependant on the belief in the
ability of children to work as partners in all aspects of the design process; however, it retains reservations about the extent to which full and equal cooperation
can occur across the generational divide, and therefore, in these respects, some
informant or instructive aspects are necessary from the adults involved in the
design team. The researchers also report that the Web portals were created in
a short period of time and that both were converted into working Web portals
that can be used by children. In this sense, they note the efficiency of bonding design. Ultimately the researchers note that the strength of bonding design
resides in the fact that it unites children and adults, novices and experts, in a
shared experience, but retains their individual strengths and weaknesses and
their different expertise in a cooperative venture.
This example of engaging both adults and children in developing online educational resources is in keeping with constitutional principles of equality and
freedom of expression, as well as with international conventions of the rights
of the child. It allows children the opportunity to engage and participate in
developing online tools. Such empowerment gives them ownership, and with
ownership comes responsibility -- none of the children involved in the project
would want to see it used for cyberbullying or defamatory statements. This is
one of many important initiatives. Teachers should get used to engaging with
students in the development and creation of Web portals, online blogs, and discussion groups, so that they no longer feel excluded and so that youth no longer
perceive cyberspace as their own private space. Teenagers will show much more
respect to their teachers if they recognize their knowledge of information technology, their willingness to engage in online discussions, and their proficiency
in helping them find resources. When students perceive that their teachers lack
expertise and are afraid of the Internet, they will more likely be tempted to
take advantage of the situation. If more adults make a conscientious effort to
accept and actively use technology as a primary source of learning, with texts
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and books that complement such use, students will gradually gain confidence
in their teachers' expertise and demonstrate greater respect.
RAISING STUDENT AWARENESS OF CENSORSHIP
Working with children to develop civic virtue and social responsibility is not
limited to cyberspace. Moreover, although students might be aware of their
free expression rights in cyberspace, they ought to know what resources are
censored from their eyes in school settings. They ought to hear various (as
opposed to only official) perspectives regardless of how controversial a topic
might be. Lisa K. Winkler (2004) is a New York educator who agrees that we
ought to ensure students can become responsible citizens, capable of meeting
the complex challenges in society. She believes that in addition to teaching
reading, writing, speaking, listening, and viewing, it is important that students
also become aware of censorship in all its forms. Winkler uses mock trials and
readings in which students are given permission to choose their own books,
as well as short writing assignments to bring the issue of censorship into the
classroom.
Petress (2004) agrees that in-class discussions about the motivations that lie
behind censorship to encourage critical analysis by students is essential. Keene
(2004) provides activities that go with the classroom discussions suggested in
her book, Who Said I Can't Read This? Keene has developed units that feed
off the resources provided by the American Library Association. The Book
and Periodical Council of Canada launches an annual "Freedom to Read"
week every February (Book and Periodical Council, 2004) when it publishes
lists of challenged and banned books with their synopses. Discussions about
censorship can begin with a currently controversial issue that makes students
aware of all sides of the problem, such as discussion of banned music, books,
controversial Web sites and movies, and the reasons for the controversy from all
sides. Teachers can facilitate discussion and recommend readings that provide
alternative or a range of perspectives on the issue.
As Foerstel (1994) noticed, as long as there are authors who have meaningful
things to say, the horns of censorship will be raised, creating an enormous
dilemma for schools. I certainly realize, however, that in some cases, censorship
might serve useful purposes, such as when material that is harmful to society is
restricted from use in the public education system (e.g., child pornography or
hate-oriented thought that proliferates on the Internet).
However, there is much written about the health and educational benefits
of introducing students to a range of opinions or sensitive and controversial
issues (Bettelheim, 1989; Elbaz-Luwisch, 2004; Katch, 2001; Shariff, 2004). For
instance, when children gain exposure to more than one perspective, they garner
the knowledge they need to make informed decisions about their lives and,
ultimately, how they express their views and attitudes toward others. Avoidance
can merely perpetrate conflict as suppressed concerns fester and surface through
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explosive disputes (Elbaz-Luwisch, 2004; Herzog, 1995; Larson, 1997; Shariff,
1999; Shariff, Case, & LaRocque, 2001; Shariff, Case, & Manley-Casimir,
2000). In other words, the educational growth of children and the promotion
of tolerance in society benefits from a school system that includes a wide-ranging curriculum, one that adequately acknowledges the realities, values, and
culture of different social groups. The lived realities, oral traditions, cultures
and religion, and gendered perspectives ought to be at the heart of development
education if the educational beneficiaries are to be empowered toward self---
sufficiency, democracy, health, and peace.
In discussing the censorship aspects as they play out in cyberbullying controversies, I have conceptualized censorship as an act of power in an educational
system that excludes certain groups. In the preceding chapters, I developed this
understanding even further by considering how censorship plays a key role in
cultural hegemony and control of student spaces. To that end, I have drawn
on scholarly perspectives on pluralism and civil society that provide guidance
on valuing and validating the histories, contributions, and cultures of students
from diverse backgrounds.
I have also alerted educators to the fact that censorship is a legal issue that
ought to be grounded more in substantive human rights and legal pluralism than
in positivist policy approaches that can result in costly ramifications for school
boards. I agree with the observation that we currently seem to be building "an
architecture that unleashes 60 percent of brain [and] a legal system that closes
down that part of the brain" (Lawrence Lessing, 2004, as cited in Lankshear &
Knobel, 2006, p. 21). Lankshear and Knobel (2006) argue that closing down
60 percent of the brain is exactly the impact of current policy directions in education generally, as well as of official versions of "digital literacy" (p. 21). This is certainly true when zero-tolerance policy approaches and reactive censorship
(withdrawing computer privileges, book banning, firewalls, etc.) are arbitrarily
applied under pressure from some teachers and parents. A positivistic approach
most often erupts in hotly debated controversies that divert the focus away from
student concerns. With the help of substantive, critical, and legally pluralistic
doctrines, the Critical Legal Literacy Model demonstrates that substantive law
is an essential component of knowledge construction and education that caters
to a pluralistic global society. The issues are presented and analyzed within the
broader sociocultural context, using models and a guiding concept map that
show greater promise of being ethical, educational, and legally defensible when
censorship controversies erupt.
Using the Critical Legal Literacy Model, which could incorporate, for example, classroom approaches advocated by critical pedagogues (Apple, 2000;
Kincheloe, 2005), prospective educators can begin to remove the layers of prej---
udicial attitudes that have developed as a result of years of censorship and
reconstruct knowledge that is grounded in comprehensive legal, digital literacy,
and critical perspectives. There is a now substantial amount of excellent literature on digital literacies, as well as a range of studies that review ways in which technology is used by children and adults (Leander, in press; Mazzarella, 2005).
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My Critical Legal Literacy approach provides fewer opportunities for conflict
and allows for incorporation of educational resources, hard-copy and digital
curricular approaches that engage and validate the diversity, and ethical and
cultural frameworks of their students. Although I do not suggest that use of this
model would bring the desired results instantly, it will, over time, facilitate the process to break down hegemonic barriers. The model also addresses the fact
that educational decision makers use agency when they select, censor, and punish students. In that connection, it will also help educators critically assess the forms of agency and knowledge construction they bring to their decisions about
whether to discuss negative online or face-to-face discourse with their students.
Regardless of whether the content of a student's offensive expression included
sexual connotations about the teacher, this could be a teachable opportunity.
For example, if I were the teacher whom Bram wrote about on Facebook, I
would have students research the etymology and history of bullying, as well as
school censorship controversies involving freedom of expression and supervision, and ask them to come to decisions about where the lines crossed over to
become cyber libel and criminal expression.
Moreover, I would attempt to find out what fueled the anger that resulted in
the comments made online. Was the student unhappy with his grade? Did he
perceive unfair treatment? Was he having problems at home and taking out his
frustrations this way? Where there is smoke, there's fire, and it is the source of
that fire that needs to be addressed.
Given the litigious nature of school controversies among educators, students, and parents over free expression, supervision, privacy, and safety, it is
imperative that teachers' knowledge construction is grounded in legal literacy
that incorporates substantive and legally pluralist modes of law, critical pedagogy and critical media literacy, as well as theories of leadership, ethics, and
social justice. Currently, I believe that many university teacher education and
professional development programs lack coherent models that provide educators with the conceptual grounding they need for a wired and litigious world.
Such grounding would facilitate recognition of the common elements and congruence between substantive legal principles, critical pedagogies, and ethical
frameworks that incorporate the cultural and paradigmatic perspectives of a
broad range of stakeholders.
When the law is studied from a legally pluralistic perspective, it becomes
apparent that there are four normative archetypes: (1) explicit and canonical
norms (manifest or patent norms), (2) explicit and inferential norms (allusive
norms), (3) implicit and canonical norms (customary norms), and (4) implicit
and inferential norms (latent norms) (McMorrow, 2007). Legislation, for example, falls under the category of explicit and canonical norms. Hence if the
Deleting Online Predators Act of 2006 legislation discussed earlier is passed in
the United States, such legislation could be described as canonical or patent.
Judicial precedents, such as the landmark Tinker case on student expression rights ( Tinker v. Des Moines Independent Community School District, 1969) or the controversial Davis v. Munroe case ( Davis v. Munroe, 1999), might be CYBER COLLABORATION
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considered allusive norms, commercial software laws customary norms, and
general principles of law latent norms. However, many of these modes of law
and the legal interpretation and application of law can intersect depending on
the context and factual circumstances in each case. Hence, although these categories might be plotted on a graph, the application is immensely more complex;
nonetheless, these categories constitute a frame of reference to evaluate how
law emerges in myriad forms.
The point of elaborating a sociological typology of norms is not to provide
a set of discrete compartments in which to pack away such legal artifacts as
concepts, institutions, processes, methodologies, and the basis of legitimacy or
legal authority itself. It is intended to expose and challenge our assumptions
about what form these legal artifacts can and do take (McMorrow, 2007).
At the risk of being tedious, I stress that institutional legal positivist thinking rests on a set of fallacious assumptions that law exists outside and separate
from the way human beings choose to govern their behavior.2 In contrast, the
Critical Legal Literacy model acknowledges the inherent plurality, flux, and
heterogeneity of all legal normativity.
Instead of accepting any a priori criterion for distinguishing between law
and nonlaw, a critical legal pluralist understanding of law is conceptually consistent with learner-centered educational pedagogies, particularly those that are
advanced from a critical pedagogical perspective (Apple, 2000; Giroux, 2003;
Kincheloe, 2005). When a legal pluralist approach is combined with critical
pedagogical perspectives, the combined practical value and application from
an educational and policy development point of view becomes clear, as illustrated in upcoming examples. Suffice it to say at this juncture, that critical legal pluralism provides the best legal theoretical foundation on which to base legal
research in pursuance of this goal:
From a critical legal pluralist perspective, what matters is not just what the Education Act states, or the latest judicial decision declares or even what principal or teacher says.
Seeing the law that students live in the school setting as issuing from a simple and unified top-down structure of authority in this manner ignores other relevant normative orders, institutions and rules to which students are subject. Most obviously belonging to a particular religion may mean a student feels under the obligation to adhere to certain prayer rituals, port a certain form of dress, or adhere to specific dietary rules, depending of course on his or her interpretation of the obligations of the faith.3 On the other hand, a child's parents may be outspoken social justice activists, and accordingly she may feel an obligation to challenge openly anything said in class that sounds to her as being slanted with capitalist bias. Further, maybe a child is from a background of normalized violence. He might be a former child soldier who has recently arrived as a refugee to Canada or she might have grown up all here life in group homes where she was subjected to sexual molestation. Of course, any one of these characteristics does not define a child's normative universe any more so than two normative worlds characterized by violence, or a certain religious creed, or a certain ideology, or a certain socioeconomic status or a geographic location would necessarily resemble one another. From daily life, as informed by interpersonal relationships (be they with family, friends, teachers, 230
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bus drivers, homeless persons, baby sitters, soccer coaches etc. and be they healthy or pathological), exposure to literature as well as multimedia sources (like television, film, music, and the web), we spin the filaments of our own everyday law.4
(McMorrow, 2007, pp. 12--13)
The most important step is acknowledging this plurality of legal norms,
institutions, and orders to which students are subject. This adjusted mindset is
much more vital to changing the classroom than an elegantly composed statutory provision or stirring written court judgment. Understanding the particular---
ity of how students engage within social networking sites, as boyd and Jenkins
(Wright, 2006) have explained is key. If educators really take their responsibility seriously, they must ensure they remember the personalities of students
who engage in antiauthority online expression or peer-to-peer cyberbullying.
Although teachers may burn with anger from the insults they read online, it is
important that they stop and remember the individual student and ask, what
are that student's gifts and insecurities, his or her fears and ambitions? It is
essential not only to learn how to teach them about a subject like math or history but also to help them to cultivate an ethical framework for thinking about
their interactions at school and online. Although many teachers believe this to
be a parental responsibility, their professional designation as "teachers" makes
it incumbent that they socialize children to develop a sense of right and wrong
and to treat each other justly.
By reorienting legal inquiry toward the decision-making processes of legal
actors, a critical legal pluralist perspective has the potential of shedding greater light on what the law actually is and the manner in which it must be reformed
to be altered substantively. Given the task of determining effective international
policy objectives for addressing cyberbullying, it is imperative that we understand what norms currently govern student behavior. Research into the classroom and cyberspace dealings between students is therefore not merely supplemental to but constitutive of legal research on cyberbullying. In the school
context, as I have always maintained, various modes of law, normative values
(ethics), and learning (attaining knowledge) are mutually inclusive -- they cannot
be separated or compartmentalized and ought to be understood this way.
A CONCEPT MAP: POSITIVE SCHOOL ENVIRONMENTS
One of the legal standards identified in Chapter 5 (see also Table 8.1) is schools'
obligation to avoid tacit condoning of bullying and harassment such that they
create a "deliberately dangerous environment" for students and teachers. There
is a clear legal expectation, based on human rights and civil law decisions in
North America,5 that schools are required to foster and sustain positive school
environments.
Moreover, throughout this book, I have emphasized that school environment
plays an important role in knowledge production and learning in the school
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231
context. I have explained that when the lived realities and educational resources
of some stakeholders are ignored, there is an impact on the school environment,
whether it is physical or virtual (involving classmates cyberbullying). Hence,
what is learned from the Critical Legal Literacy Model can be transported into
a concept map that informs the objectives of fostering and sustaining school
environments that are welcoming and inclusive, thereby empowering all students to engage confidently in their learning. This could mean allowing pupils
to explore the Internet but preparing them through discussion and dialogue
to know when to avoid predators, when to avoid joining peers in joking that
crosses the line to cyberbullying and cyber libel, and preparing them speak up
against cyberbullying or discriminatory forms of expression.
One example of students who spoke up against cyberbullying took place
in the aftermath of the mass college shootings in Virginia, United States, in
April 2007. Facebook was used by young people in two ways. The first was
that thousands of young people reached out to the students of Virginia Tech
University with their condolences. The exchanges helped them develop bonds
and feel as though they were contributing something positive to a terrible situation. Others, however, began to attack an Asian student because the killer had
been South Korean. This was quickly abated by the influx of responses from
young people who protested the singling out and stereotyping of Asian youth
on Facebook (Agence France Presse, 2007).
Cyberbullying is reduced in an environment where selection of what is
taught, discussed, and validated as learning is informed by a proactive educational approach that incorporates critical pedagogies, digital and media literacy,
legal literacy, and relevant ethical frameworks. Such an approach is not built
on assumptions but is incorporated through dialogue and engagement of students from all backgrounds. This is where social networking tools, as Jenkins
and boyd (Wright, 2006) both observe, can have significant positive value. The
research presented earlier (Large et al., 2006) confirms that the more involved
students are in establishing the parameters and content of their own education,
the more likely they are to engage critically in their learning.
I have discussed some of the common patterns that emerge when school
environments are "poisoned" and when relationships among administration,
teachers, parents, and students are not cohesive. I present a concept map that
incorporates the Critical Legal Literacy approach. The concept map informs
teacher education on bullying and cyberbullying and illustrates the benefits of more proactive, rather than reactive, responses. The approach educators adopt ultimately determines whether the school environment will be
positive and conducive to learning or poisoned and detrimental to learning
(Figure 8.2).
The model (original in shades of red for reactive and green for proactive),
illustrates that a reactive approach underpins suspensions, expulsions, censorship of student expression and use of technologies results in tacit condoning of
discriminatory attitudes through blanket policies that ignore differences. Moreover, a reactive approach generally reduces student safety because it encourages
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figure 8.2. Concept map incorporating critical legal literacy.
racism, sexism, homophobia, and other forms of discrimination. A reactive
approach can also be rooted in historically negative and fractured relations
between administration and staff and a lack of common educational goals.
There is no question that student learning in such an environment is impeded
because students are distracted by the negative, hostile, and exclusionary messages they receive.
Zero tolerance provides no opportunity for dialogue, analysis of demeaning
forms of expression, or consideration of all stakeholder perspectives. Students
can be shown the impact of their expression on the teachers they decide to target, including their ability to work or find other employment and their feelings
of frustration at not being validated as good teachers, which can ultimately
affect their spouses and families. When school environments are more nurturing than hostile, teenagers such as Brad, Bram, Julia, and others discussed
in earlier chapters might think more carefully before they post negative comments about teachers and administrators online. This is where the Stakeholder
Model I have developed as part of the Critical Legal Literacy Model is also
useful.
THE STAKEHOLDER MODEL
Figure 8.1 includes the Stakeholder Model within the Critical Legal Literacy
approach. It is in the same box as "Trust and Agency." This is an important component of the Critical Legal Literacy approach. During my ten years of studying
legal issues in education, I have developed a simple test for nonarbitrary balancing of competing rights in the school context. The test is modeled after
the adjudication process that Canadian courts use in weighing and balancing
CYBER COLLABORATION
233
stakeholder rights to rule on questions of equality, freedom of expression, freedom of religion and conscience, and so on. This is how the Stakeholder Model
works.
The Stakeholder Model can be applied to a range of specific democratic challenges in schools that involve stakeholder conflicts. Although the model may
appear somewhat mechanistic, I suggest that it is a first step in helping educators navigate stakeholder concerns regarding cyberbullying and student expression.
Drawing from a combination of legal tests derived from U.S. and Canadian
jurisprudence on constitutional challenges, the Stakeholder Model guides an
understanding and appreciation of the perspectives that each stakeholder brings
to the issue. In Chapters 5 and 6, I mentioned several high schools that had
experienced a significant number of antiauthority postings about teachers and
school administrators by students at the schools. Consider the following case
example as applied to the Stakeholder Model.
Poisoned Environment
In one high school (High School X), more than 100 students had joined a
Facebook forum under the school name. Approximately twenty students were
caught discussing teachers, and out of those, four were narrowed down as
posting the most negative comments about teachers. When I met with administrators, what struck me was the history of deep divisions among staff within
departments, some of whom did not even speak to each other. There was resentment toward administration because it had changed so often, as well as resentment and mistrust toward the school board. Parents were competitive and
demanding because this school has a highly competitive academic program,
and the approach of older teachers was didactic. Moreover, the new administrators informed us that young teachers who joined the school quickly became
part of and were influenced by the cynical culture at the school.
Cyberbullying was a symptom of this poisoned environment, where students
put into words the negative feelings their teachers conveyed and modeled. I
was invited to attend the school to give workshops for teachers and students
on cyberbullying. I realized this would make no difference unless I was able to
address the deeper issues, specifically, the divided culture at the school. How
could I address the "horns of the dilemma"? This was a perfect time to draw
on the Stakeholder Model for help.
Step 1: Identify the Stakeholders
As I have emphasized throughout this book, although the media would have
people believe that cyberbullying is limited to a battle between teachers and
students, or among students themselves, this assessment is inaccurate. If we take
the case of High School X, we realize antagonism among teachers at the school
and the administration went back many years, to when the school went from
being a private school to a public school taken over several times by different
school boards. Each time a new school board took over, administrative changes
were made. Promises made by the previous board were rarely carried out by
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CONFRONTING CYBERBULLYING
the next school board. Yet teachers remained at the school because it of its
reputation as an institution of high academic stature. This fact made the school
attractive to teachers and gave them a high stake in remaining at the school.
Administrators came and went, in some cases because they could not handle the
teachers' hostility. Students were of a high calibre; a significant number were
in an international baccalaureate program. This made the school attractive to
competitive parents who wanted their children to succeed academically. Using
Step 1 of the Stakeholder Model, we can identify several stakeholders:
1. the current school board -- elected trustees;
2. new administrators;
3. parents who support student free expression off-campus and those who
do not, and parents who support suspensions as discipline and those who
oppose it;
4. teachers who endorse use of social networking tools online and those who do
not understand or use the Internet, teachers who engage in didactic teaching
methods and support punitive measures such as suspensions and expulsions,
teachers who prefer interactive teaching in which students are empowered
and have a voice; and
5. students ranging from those who use social networking tools solely for personal purposes and those who use it as a discussion forum to express their
views.
When student online comments were discovered at High School X, the teachers signed a petition demanding that offending students be asked to leave the
school. The teachers' union endorsed their petition. Parents, on the other hand,
felt their children were being unfairly punished and argued that the teachers
were overreacting. The administration was caught in the middle. The media
became involved when information was leaked out, resulting in dissonance and
conflict. This is where Step 2 of the model became in useful. The key claims
set out in Table 8.2 have emerged from the scholarship on media framing, my
review of the range of media reports on cyberbullying, case studies discussed
in Chapters 5 to 7, interviews with school administrators and teachers under
my research grants, and anonymous student surveys under my two research
projects funded by the Social Sciences and Humanities Research Council of
Canada, reported in Chapter 4. Some claims emerge from personal communication with teachers, administrators, and school board members from a range
of schools as part of my ongoing research and consulting activities. They are
also exemplified in the case of High School X where the problems appear to have
existed for many years and where sensitivities are described as running deep.
Step 2: Validate Their Claims
Table 8.2 describes Step 2 of the Stakeholder Model, using High School X as
an example.
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235
to
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table
Claim
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236
CYBER COLLABORATION
237
Step 3: Critically weigh each claim against the other
It is always easier to weigh the rights and interests of stakeholders once they
have been identified and their claims heard. It is the first two steps that most
reactive policy responses overlook.
School Board Claims
In their haste to "control" the students, appease teachers or parents, and preserve the good reputations of their schools, school board officials often override
the first two steps of the Stakeholder Model and focus only on the students.
When the claims of other stakeholders are not heard or validated, the process is
doomed to failure. Teachers and parents begin to lack confidence in the school
board because their concerns are ignored. I have been contacted so often by
frustrated parents of children who are victims of bullying and cyberbullying.
In every case, parents have come up against the "wall of defense" described in
Chapter 6. Having antibullying policies and task forces in place is not enough.
Similarly, teachers and school administrators who attend my graduate courses
at McGill express frustration at the fact that often their school board policies
are not supported with adequate training or time to implement initiatives to
address bullying. If school board claims are applied to Step 2 of the Stakeholder Model, we find that from an administrative perspective, maintaining
reasonable control and managing a crisis is a justified priority. The question
that challenges this justification is whether prioritizing control of the situation ought to trump the educational concerns of stakeholders such as the students
and their parents. This is the question that will determine how much weight
the school board justifications carry.
School Administrator Claims
School administrators are often caught in the middle. The school board wants
head teachers and principals to maintain the school's reputation and keep
things under control. They want to avoid media attention at all costs. They
have to keep parents happy. In cases in which academically proficient students
are caught cyberbullying, school administrators are required to make tough
choices about how to discipline them. Should they support teachers who want
the students suspended or expelled? Should they listen to parents who insist
their child remain in school and be allowed to graduate? In all the chaos, do
administrators create opportunities, or have the time, to hear the students' side
of the story? How school administrators react can have an enormous influence
on a negative or positive school climate. School administrators need to remember that over and above the logistics of juggling stakeholder demands, they are
the school heads or principals of institutions of learning. Their priority ought
to be the students. Students watch the reactions of their school administrators. On the basis of the legal standards identified in Chapter 7, it is arguable
that cyberbullying disrupts learning and also disrupts the educational mission
of the school. When classmates or teachers are the subjects of cyberbullying,
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CONFRONTING CYBERBULLYING
there is also a nexus to the school. Administrators should always be cognizant
of the fact that one clearly established legal responsibility of educators is to
ensure that schools do not create a hostile or "deliberately dangerous" school
environment. The obligation resides in the responsibility to ensure that school
climates (physical or virtual) are conducive to learning. It is at this point that
the administrative claims lose legitimacy. Zero-tolerance suspensions convey a
sense of intolerance, a lack of caring, and a lack of responsibility. Removing the
"problem child" from the school appears to absolve schools of responsibility
to do more. However, this action in and of itself creates a hostile and chilled
school climate. This is especially true when students notice that little action is
taken to address peer-to-peer bullying or cyberbullying. In this context, then,
it is reasonable to ask whether suspension is a justifiable claim on the part of
school principals and head teachers.
I have always argued that the only educational value of suspensions is that
they teach and model intolerance. Educators argue that students need consequences. Students can experience the consequences of their actions through
many other means, however. The lack of creativity within school systems globally to find other alternatives never ceases to amaze me. I would argue that if
weighed on a scale against educational alternatives, school suspensions do not
carry significant weight on the scale of legitimate claims.
Teacher Claims
When teachers who discover they have been defamed, demeaned, and libeled
in the highly public forum of cyberspace demand consequences for the perpetrators, it is reasonable to agree that their claims are justified. Their claim for revenge in the form of suspensions and expulsions against students, however, is
not justified and carries little weight. Such claims might be informed by dissatisfaction and disillusion with school board and administrative support in the
past and a lack of confidence or trust in the way things are run at the school.
Nonetheless, unless teachers refocus their attention on why they are there,
unless they reconceptualize their role as educators, protectors, caregivers, and
student mentors, I argue strongly that they are not justified in demanding harsh
discipline. Suspensions are rooted in military models and boot camps. They
are not grounded in educational pedagogies. Those responsible for the education and nurturing of future generations ought to remember this. Instead of
demanding a ban on YouTube or calling for "forceful" action, educators could
be searching for ways to address these issues by utilizing the infinite educational resources that technologies now provide. If teachers were able to overcome the
mindsets that Lankshear and Knobel (2006) argue hold them back, the possibilities for creative collaboration with bored and cynical students are infinite.
If teachers can engage with and empower students to guide them in becoming familiar with new technologies, they have a greater chance of succeeding
in overcoming the mindset and addressing cyberbullying in more educational
and empathetic ways. The resolution I present in Chapter 6, drafted by the
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239
Canadian Teachers' Federation, begins to do this. The resolution is sufficiently
comprehensive and seeks to learn more about how young people are using the
technologies.
The predominant teacher responses, as evidenced by interviews with teachers
(Shariff, 2007), suggests that when weighed on a scale against the types of online
educational opportunities described earlier, teachers' demands for suspension
or expulsion and their general lack of attention to peer-to-peer bullying among
students carries little weight on the scale of legitimate claims. If we consider this from the perspective of English common law and Canadian obligations under
tort law, the duty of care on teachers to be "careful and prudent parents" and
stand in place of parents (in loco parentis) holds that there is an ethic of care
and responsibility to exhibit concern, nurturance, and guidance of students. If
teachers only hold out for punishment and revenge, it would seem that their
claims fall widely short of a legal duty of care to their students.
Table 8.2 shows how important it is to communicate. If the school board is
intent on hearing the teachers, trustees need to demonstrate this in ways that
go beyond simply having antibullying and anti-cyber-bullying policies in place.
Moreover, the teachers need to allow new administrators time to catch up and
make a difference. They need to foster opportunities to develop relationships
of trust. As educators, their claims for vindication are less valid than student
claims for a learning environment that is less poisoned and more conducive
to learning. This requirement, as established by law, is detailed in Chapter 7.
Further, if teacher responsibilities are placed under the legal "duty of care"
and "careful and prudent parent" doctrine, how many careful parents would
not give their children a second chance if they had made a mistake? Yet again,
student claims carry greater validity than teachers' hostile responses. Moreover,
according to the courts, the test for cyber libel is whether an ordinary person
who is not unduly sensitive would interpret the expression as truth. The reality
is that some teachers may be unduly sensitive, and this sensitivity may also
be reflected in the Ontario College of Teachers' survey (2007) suggesting that
84 percent of teachers report being cyberbullied. This is perhaps why cases
in which student comments were close to the truth have received such strong
reactions.
For example, in one case, the teacher had openly declared she was a lesbian, yet her colleagues were extremely offended when the students described
her online as a lesbian. Another teacher was chided for her accent. She was
extremely annoyed by this, but in reality, she did have a strong accent. Rather
than seeking revenge through suspensions, teachers ought to focus on how they
can explain to students the impact of their online statements. As educators, it
is their responsibility to communicate and open a dialogue with students about
why those statements, no matter how close to home they might be, are hurtful. By opening a dialogue, I mean engaging students' respect and trust and
listening to and hearing their perspectives. A teacher's first priority should be
to determine whether it was the poisoned environment at the school that led
to the online comments. If so, the next step is to seek student input as to how
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CONFRONTING CYBERBULLYING
the learning environment might be improved. Find out what is missing, what
teachers might be doing that upsets students, and how can they change some
of their teaching approaches. Are students receiving opportunities to provide
opinions? Are these opinions being validated?
The participation rights of children and adolescents are protected under the
United Nations International Convention of the Rights of the Child. Canada
and a range of European and Asian countries have signed a treaty that requires
attention to provision, protection, and participation of students in their learning. If this is not happening, teachers should inform students that they have
this right and work with them to develop ways to ensure their participation in
classroom discussions, in developing codes of conduct, and so on. The problem
is that few teachers have any knowledge of human rights or their implications
for educational policy and practice (Shariff & Sarkar, 2004). Once students
come to realize that teachers are genuinely interested in their well-being and
learning experiences, they will be significantly more open to hearing why their
online expressions should not cross the line to cyberlibel or defamation. As
the Media Awareness Network (n.d.) has shown, when children and teenagers
take leadership in addressing peer behavior, they can be very effective.
Moreover, if teachers were to pay more attention to peer-to-peer bullying
and cyberbullying and critically evaluate their own modeling of attitudes to
children, some of them might realize that they have not been listening to their
students -- and that their students need avenues to discuss concerns that are
bothering them.
I recall, for example, my own son who was frustrated with his math teacher
in Grade 7. He was the only student in the class who was taking advanced
Grade 8 math, and the teacher saw marking his assignments as a chore. This
class was a cotaught classroom with two teachers in a middle school. One of
the teachers was always late returning my son's marked assignments. She rarely
paid him any attention in class, other than to ask him to teach students who
had difficulty in math. One day after asking for his marked test back several
times, he received a curt response from the teacher saying she had not graded
it. In frustration, he uttered the words "f . . . you" under his breath. The
other teacher heard him, and he was suspended. The school administration in
this case handled the issue well. Although he still had to serve his in-school
suspension, after being made aware of the issue, they invited him to meet with
a visiting delegation of government officials from the Ministry of Education as
an ambassador or leader in the school to show them around, answer questions,
and ask them about certain policy changes they were planning to make. This
showed that the school had confidence in his ability and provided him with
an opportunity to take leadership. Although I do not suggest that he should
not have received any consequences for uttering the "F word" I wonder what
would have happened if the Internet had been available and he had a chance
to unleash his frustrations with more words about his teacher?
Moreover, if I had not taken the time as a parent to find out the source of his
unusual behavior, would he have received the leadership opportunity the school
CYBER COLLABORATION
241
gave him? I wonder how many students do fall through the cracks when they
are bored, disengaged, or frustrated with teachers in schools and cannot turn
to parents. Accordingly, I suggest that when young people engage in this kind
of expression online, it is definitely worth hearing their point of view before
deciding on the consequences. Of course, there is also the teacher's perspective:
she had a heavy workload, and this was extra work. Yet when we weigh and
validate each claim, we can argue that students are at school to learn, and when
the teacher is not doing an adequate job, then her claim is less valid than that
of the student who is doing his best to learn.
In the same example, if we consider how the school administrators turned a
negative into a positive learning opportunity, while also preserving the school
reputation with the ministry officials, they fostered, at least at the school level, a proactive environment. It might be argued that there are other children who do
not use this kind of language. We would all like to believe our children are not
capable of using this kind of language, but we know in the back of our minds
that they all use it, as do most adults under frustrating circumstances. What my
son learned that day was that he has support both at home and at the school
and that when he is bored or having difficulty with the teacher, he can always
turn to someone instead of stewing about it himself. He also learned that using
the "F word" has consequences but that the consequences he received were fair
and appropriate.
In this section, I have walked through some of the considerations for applying the Stakeholder Model and took readers through the process of weighing
and juxtaposing competing stakeholder claims to assess their respective validity. This nonarbitrary process has no room for reactive responses or band-aid
solutions. I appreciate that when all stakeholders are making simultaneous and
contradictory demands, a reactive response appears to be the only choice. However, I would urge educational policy makers to remember that the Stakeholder
Model is worth undertaking to hear and grasp important claims and to bring
together the voices of all stakeholders, collaboratively and cohesively, to create harmony. Arguably this sounds far too utopian, but I am not describing
a panacea. Judges adjudicate complex cases using this process all the time.
Although I agree that the outcomes of some judicial decisions are not always
satisfactory, I proffer that at least the Stakeholder Model allows for a thoughtful and ethical assessment of the issues, bearing in mind the legal standards and
responsibilities identified in Table 8.1, and the educational and ethical considerations that affect all stakeholders. There is one final step in the Stakeholder
Model.
Step 4: Minimal Impairment of Rights
Once stakeholder claims have been weighed against each other, it is important
for the decision makers involved to ensure that whichever policy decision is
most validated, that decision or policy does not substantially infringe on the
rights of certain stakeholders. For example, if the school decides to stay with a
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CONFRONTING CYBERBULLYING
zero-tolerance policy and suspend only the students who make sexually libelous
comments about teachers, this policy is justifiable. Why? Because it protects the
interests of a greater number of teachers. However, the policy makers must then
ensure that they consider whether any of the offending students are graduating
soon, the extent to which the suspensions will affect their grades and chances
of acceptance to college or university, and so on. In cases where a straight-A
student receives a suspension of this sort, it may be worthwhile to consider
an alternative consequence that does not affect the student's entire academic
future. Although a defamatory expression can certainly have an impact on a
teacher's reputation, it is important to remember that we are still dealing with
an immature young person who needs to be educated as to why he or she should
not behave this way. Young people deserve a second chance. Let me clarify this
in more legal terms.
In cases of students' online expression that demeans teachers and school
officials on Facebook, most school responses have been to suspend the students
involved. Some of these students, like Brad Parsons, have protested infringement of their rights to free expression. Many parents agree. They believe that
their school has no right to interfere with comments made from home computers in a private online conversation. The school might have a policy calling for
zero-tolerance suspension. This might be supported by government legislation.
Nonetheless, school officials have important decisions to make. They must consider whether the student comments were so harmful that they have a negative
impact the entire school environment and learning of all students at the school
or in the classroom. As the freedom of expression cases have ruled, schools
do have the authority to intervene if the expression materially or substantially
affects learning or if it interferes with the school's educational mission. In the
case of sexually charged comments about teachers being pedophiles or masturbating in class, I would argue that such comments pose a risk to the greater
good in several ways. They undermine the authority of the teachers or school
officials in question. When students read the comments, they are likely to gossip
and giggle in class. This disrupts their focus and learning and upsets the teacher.
When the teacher finds out, his or her anger also has a significant impact that
poisons the entire school environment.
Although I agree that schools have a responsibility to intervene and have
specific postings that are blatantly insulting or abusive to teachers or other students, I do not agree with means that schools and some governments adopt,
such as suspension policies, banning of technologies from the classroom, withdrawing computer privileges, or suspending students from school field trips they
were eagerly looking forward to. This in my view does not minimally impair
student free expression rights; it attempts to muzzle them completely. This is
why the minimal impairment test is a crucial fourth step in the Stakeholder
Model. It is incumbent on school officials to determine educational options to
help students realize the impact of their statements. I argue for introduction of
the circle sentencing approaches, for example, that many aboriginal communities use. Through this method, perpetrator(s) are brought to face their victims
CYBER COLLABORATION
243
and hear their reactions and pain. Instigators must hear how their actions negatively affected the lives of victims' families and loved ones as well. In the case of antiauthority online defamation, they should hear from the teachers, their
families, and other students who want to learn but find it distracting when
these controversies take place. Similarly when peer-to-peer cyberbullying is
involved, the perpetrators should be made to face the victims' parents, their
siblings, and anyone else who was affected.
CONCLUSION
Although I have argued that schools have a legal basis for extending their reach
into cyberspace, I reiterate that actions such as censoring student Web sites, or
searching e-mails, for example, are rooted in legally positivist approaches that
do not provide the most effective means of preventing cyberbullying. On the
contrary, I recognize that school discipline policies are least successful when
they merely serve as a reactionary mechanism to unwanted behavior. Schools
have an obligation to monitor inflammatory student speech, but it is equally
important to recognize that educators have a duty to cultivate an educational
atmosphere that is consistent with the moral and political principles essential
to expanding democratic values. In other words, when cyberbullying becomes
pervasive within a school, we cannot simply place the blame on students. Instead
we must look at the systemic forms of discrimination that pervade the institutional setting and the school climate, revisit the values and beliefs that our
schools and constitutional principles impart, and select educational measures
to ensure that these values promote acceptance and respect among students.
As school landscapes evolve to keep up with changes in technology and
society, it is important to consider the simple alternatives provided in this book, ones that are less costly than the calls for "battle," loss of children's lives through suicide, and positivist rules that attempt to force conformity. Although I have provided a number of models and a concept map that I believe show greater
promise for addressing the policy vacuum and the enormous challenges that
technologies bring, I reiterate that this book is not a "how-to" text. Rather, I
hope it has provided readers with an adjusted lens that discloses rich context for
discussion and dialogue about the definitional complexities and the biological,
environmental, and systemic influences that shape and perpetuate the content
of student expression in cyberspace. Furthermore, I hope it motivates readers
to engage in a responsible process of analysis, which avoids reliance on reactive
decisions that lead to the kinds of battles on which the media is always eager
to report.
As noted by scholars such as Giroux (2003), school discipline is best achieved
when it incorporates an element that aims to educate students about both moral
and political principles. Giroux argues that "schools should provide forms of
critical education in which ethics and values are used to teach students to keep
the spirit of justice alive in themselves, embrace the need to be compassionate,
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CONFRONTING CYBERBULLYING
respect the rights of others, and be self-conscious about the consequences of
their actions" (p. 94).
I have also observed that adults need to become proficient and participate
with young people in learning how to use the technologies that form such an
important and prominent part of their lives. If adults do not take the initiative
to do this, they will eventually be shut out -- or, it could be said, censored --
from the virtual worlds of their children and students. As I have already
mentioned, students are increasingly forging social relationships and learning much of what they know through new technologies. It is incumbent on
educators to engage with these technologies to develop interactive curriculum programs that are not restricted to class time. As I explained earlier, the
potential for learning in the Digital Age is enormous. Consider, for example,
some of the pedagogical suggestions recommended by Lankshear and Knobel
(2006). They comment that the "digit" or "skill teaching" aspect of digital
literacies is far less important than allowing room for social relationships to
"emerge organically" (p. 20) through immersion in new technologies. They
recommend the kind of Knowledge Producing Schools that are being developed on a school-by-school basis by Chris Bigum, Leonie Rowen, and Associates (Knowledge Producing Schools Web Site, 2005; Lankshear & Knobel,
2003). They also recommend James Gee's (2003) celebrated study of what video
games have to teach us about learning and literacy in which he explores game
playing as a sociocultural practice. Through this study, Gee tests what drives
people to learn and keep learning, and how they achieve and grow in their
learning.
In this book, I have attempted to provide an adjusted lens through which we
ought to view the highly publicized issue of cyberbullying. Elsewhere (Shariff,
2008), I have introduced the following metaphor and believe it is in order to
recall it here: An artist has to take time away from his painting when the colors
he is using become so blurred that he can no longer see them clearly. He takes
time out to visit an optometrist. During his eye exam, the focus is no longer
on what he sees but on how he sees. It is the adjustment to the lens through which he sees and interprets his surroundings that is the focus during that short visit to the optometrist (Esmail, 2007). Similarly, this book was written to help
educators and policy makers to consider readjusting the lenses that seem to have
blurred their policy and practice alternatives to such an extent that they need
to refocus and reconceptualize the issues. The legally pluralistic perspectives,
Critical Legal Literacy Model, Stakeholder Model, and the concept map all
contribute to this adjusted lens and toward a reconceptualized approach to
understanding the role of law in a digitized world.
Instead of seeing cyberbullying as a problem and a battle that needs to be
controlled and squelched, an adjusted lens will refocus our attention on what
these symptoms tell us and how we can address the root causes that drive such
expression. Research into empirical studies is necessary before the legal research
approach we adopt to cyberbullying will ever be as broad and balanced as it
should be. In mapping legitimate anti-cyber-bullying policies, it is vital to bear
CYBER COLLABORATION
245
in mind what Macdonald and Kong (2006) wrote in a recent article on law
reform that opens this chapter:
A legal rule is legitimate only to the extent that it can capture people's imaginations and make them believe it is worth engaging with and participating in the normative framework proposed. Moreover, the legitimacy of a legal rule depends on a minimum
functionality common to all rules: its capacity to effectively capture, shape, and refract parties' perceptions of problems. In brief, a legal rule ceases to be a command and instead becomes a hypothesis of action and interaction.
(p. 22)
If we want pupils to follow our rules, it is essential that we engage them and
their desire to comply through interaction and agency. As the quote from Vernon God Little (Pierre, 2003) that opens this book suggests, our children's biggest cyber-"bullies" tend to be adults -- from the harsh and intolerant zero-tolerance
policies and legislation they implement to the tacit condoning of peer-to-peer
bullying and cyberbullying among kids to sexual predation. As McMorrow
(2007) notes, the question of what is legitimate law for students must always
be asked with their inalienable dignity in mind. Elsewhere (Shariff, 2008), I
have provided numerous examples of how many children's lives are exploited
by sensational news reports in the news media and on television. I direct readers
to reconsider the quote from Vernon God Little, now that they have reached
the conclusion of this book, as a reminder that we must realize adults carry
the greatest share of the blame for all forms of cyberbullying among youngsters. Moreover, unless we reconceptualize our approach from a legally positivist paradigm to a collaborative, substantive, and legally pluralistic approach,
we can expect only minimal progress toward fulfilling educators' concerns to
reduce cyberbullying. Those that fall through the cracks will be children who
need our help if they are to contribute to fostering a better world than the legacy we have left them.
It is time our schools took up their responsibility to do what they are mandated to do -- educate, not punish, students. As this book has attempted to show,
this will involve a collaborative effort on the part of all stakeholders, including government law and policy makers, Web providers, parents, the news media,
school boards, teachers' unions, the judicial system, and the students themselves. Instead of turning all children who experiment with their freedom in
cyberspace into Vernon God Little scapegoats and criminals who must be controlled, it is important that we work with the law to implement democratic and ethical responses that encourage young people's participation. It is time that we
empower them to work with adults and peers toward inclusive and less demeaning forms of online interaction. To do otherwise ignores and jeopardizes their
versatility, creativity, and potential to take leadership and engage in a digital
world that will expand their minds. Stakeholders need to discard the burdens
of a society that pays lip service to democracy and digital progress under the
guise of intolerance, exclusion, and orthodoxy. The time to embrace the digital
246
CYBER COLLABORATION
age and all its emerging legal and policy challenges in collaboration with our
children is well overdue. Shared leadership with young people shows infinitely
greater promise in advancing peaceful and inclusive relationships (both on and
offline) than does the current "battle" on cyberbullying between schools and
kids.
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Notes
1. McMorrow notes, "Although Weil's (1977, pp. 153--154) remarks specifically address the context of war, she identifies the "empire of might" as weighing on all facets of human existence." Simone Weil, "The Iliad, Poem of Might."
2. See "The Grand Inquisitor" (Dostoyevsky, 1937). See also Belley (1998, p. 70), who notes that the fundamental value being extolled in this passage, the freedom of human conscience, is at the heart of R. A. Macdonald's legal thought. From this
perspective, law can be imagined both as mould and as mirror of social interactions.
3. The irony of the boys' "rescue" from their isolation on the island is that they now return to a world just as violent and hostile to human dignity.
4. See Macdonald and Sandomierski (2006).
1. Eight to nine percent of elementary school children are bullied frequently (once or more a week) and 2--5 percent of students bully others frequently (Bentley & Li, 1995; Charach, Pepler, & Ziegler, 1995). Vaillancourt and Hymel (2001) found higher rates in a study of high school students (10--11 percent are bullied, 8--11 percent bully others). Other surveys cited by National Crime Prevention Council disclose similar results (Boulton & Underwood, 1992). Roher (1997) reports that out of 457 students surveyed, 20 percent reported more than one incident; 8 percent of the students questioned are bullied weekly or more often. In a recent U.S. survey of more than 15,000 young people in Grades 6 to 10, Nansel, Overpeck, Pilla, Simons-Morton, & Schedit (2001) found that 9 percent of students reported being bullied frequently, and more than 8 percent of students admitted to frequent bullying. In a recent study of junior secondary school students, Henderson and Hymel (2002) found that of 490 students from Grades 8 through 10 (50 percent female, 50 percent male), 64 percent of respondents indicated they had been bullied, 12 percent reported being victimized regularly (once or more a week), and another 13 percent admitted to participating in bullying regularly (once or more a week). The majority of respondents reported observing bullying at the school, but only 40 percent said they tried to
intervene. See also DiGuilio (2001).
2. A bully was described as "a tyrannical coward who makes himself a terror to
the weak," "[A] low-minded unscrupulous bully, notorious for his pro-Slavery
249
250
NOTES TO PAGES 24--39
sympathies," or a "[R]uffian hired for purposes of violence or intimidation" (Dicey,
1863, p. 646).
3. Mooney, Creeser, and Blatchford (1991) found that 96 percent of the 308 seven to eleven year olds in their study reported teasing as the most frequent form of bullying they experienced. See also Boulton and Hawker (1997). Seventy-four percent of girls spend time on chat rooms and instant messaging (Berson, Berson, & Ferron, 2002);
14 percent of Canadian youth are harassed electronically, and 15 percent admitted
harassing others electronically (Leishman, 2002).
4. Olweus (1993) first highlighted the difference between direct (open physical attacks) and indirect (social isolation and exclusion of victims) as bullying. Bj örqvist, Lagerspetz, and Kaukiainen (1992) went further to distinguish between physical aggression (hitting, pushing, kicking), direct verbal aggression (calling, threatening), and indirect aggression (e.g., telling tales, spreading rumors, deliberately excluding a person from activities).
5. Artz and Riecken (1997), Lanctot (2001), and Moretti (2002) reported violent acts as prevalent among males but on the rise among females. Schissel's (1993) analysis of trends in official Canadian youth crime rates disclosed a steady increase in the number of violent offences committed by females from 1970 to 1990. Tanner (1996)
cites a 29 percent increase in the number of female youths charged between 1986
and 1990, cautioning, however, that this still only represented 18 percent of all
youths charged during this time. Moretti (2002) reports that the gender gap in terms of the seriousness and physical nature of bullying and violence between boys and girls is narrowing.
6. Scholars in the field now recognize this discrepancy in the research, resulting in a recent conference that specifically focused on girls and violence. The conference objective was to gain a more accurate profile of girls and violence through a joint review of research by psychologists, sociologists, and criminologists who specifically study this perspective ("Vancouver Conference on Aggressive and Violent Girls,"
7. See also Chamberlain and Houston (1999) and Katch (2001).
8. Although the research on prevalence of bullying is reported under a separate heading in this chapter, these statistics are important here because they relate to sexual harassment as a primary form of bullying in schools. See also Louis Harris and
Associates (1993); Chamberlain & Houston (1999); and Tolman, Spencer, Rosen-Reynoso, and Porches (2001). Watkinson (1999) and Bowlby and Regan (1998)
provide Canadian statistics that corroborate U.S. findings.
9. O'Connell and colleagues (1999) videotaped 185 bullying episodes by students in Grades 1--6 and observed that just over half (54 percent) contained a bully, a victim, and two or more peers. An average of four students was present during the episodes.
Significantly, they found that the duration of the bullying increased as the number of peers watching the episode increased. In 54 percent of the cases peers simply
observed the episode. In nearly 21 percent of the cases, peers physically or verbally joined in the bullying.
10. For example, Hamed Nastoh, Dawn-Marie Wesley, Emmett Fralick suicides; murder of Reena Virk; shootings at Columbine High School in Colorado and in Mayo,
Alberta.
11. The parents abandoned the Dufour litigation after filing a Statement of Claim in the Vancouver Supreme Court Registry.
NOTES TO PAGES 39--65
251
12. Seventy-five percent of Americans interviewed thought school shootings were likely to happen in their community.
13. These authors also agree that most young people who engage in crime are not
dangerous. They engage in petty thefts or break and enter, or they play truant from school.
14. Providing U.S. statistics, he notes that in 1992 and 1993, seventy-six students were murdered or committed suicide at school -- an average of about 38 a year. Six years later, sixty-nine students suffered school-associated, violent deaths (murder and
suicide) in a two-year period. The number also decreased 40 percent from 1998 to
1999, from forty-three to twenty-six. DiGuilio argues that when compared with the
rate of youth murders occurring outside the school context, in 1992--1993, young
persons between the ages of five and nineteen were more than 100 times more likely
to be murdered away from school than in school according to a report from the
Office of Juvenile Justice and Delinquency Prevention.
15. This is a result of the baby boomers having children.
16. Doob, Marinos, and Varma (1995) observe, for example, that whereas previously schoolyard fights were simply reported to school administrators, they are now more frequently reported to police.
1. Article 2: A person who disturbs public order, endangers public safety, infringes on the rights of person and property or hampers social administration, which is
harmful to the society and which, according to the provisions of the Criminal Law
of the People's Republic of China, constitutes a crime, shall be investigated for
criminal responsibility according to law; and if such an act is not serious enough for criminal punishment, the public security organ shall impose on him a penalty for administration of public security according to this Law.
2. Article 42: A person who commits one of the following acts shall be detained for not more than five days or be fined more than 500 yuan; and if the circumstances
are relatively serious, he shall be detained for not less than five days but not more than ten days and may, in addition, be fined not more than 500 yuan:
(1) writing letters of intimidation or threatening the personal safety of another person by other means;
(2) openly humiliating another person or slandering another person by fabricating
stories;
(3) framing another person by fabricating stories in an attempt to make the person subject to criminal investigation or to penalty for administration of public
security;
(4) threatening, humiliating, or beating up a witness or his close relative or retaliating against either of them;
(5) repeatedly dispatching pornographic, humiliating, intimidating, or other information to disturb the normal life of another person; or
(6) peeping, secretly taking photos, eavesdropping, or spreading the privacy of
another person.
3. Article 246: Those openly insulting others or using force or other methods or those fabricating stories to slander others, if the case is serious, are to be sentenced to three 252
NOTES TO PAGES 65--131
years or fewer in prison, put under criminal detention or surveillance, or deprived of their political rights.
4. Although most of these case examples are taken from media reports that frame
stories in a certain way, what is indisputable in all of them is the way in which young people perceive and use their online space. I deconstruct some of these cases later on to analyze ways in which the media puts a certain twist to our understanding of them. In the meantime, the facts regarding the positions generally adopted by
various stakeholders -- students, parents, politicians, and educators -- are consistent across news reports.
5. The end of the article says he was expelled, whereas, he was in fact only suspended by school authorities.
6. See also G. S. Takach (1999).
7. In this case Pat Holly, a member of the First Nations, sent thirty e-mails accusing the plaintiff of grave robbing and committing crimes against his people during the course of her archaeology digs.
1. The National Children's Homes (2005) survey found that nearly 30 percent of cyberbullied students told no one. Seventy percent of the children in Grades 6--8 surveyed under my own research in Quebec (Shariff, 2007), said they did not believe it was the school's responsibility to intervene in bullying outside of the physical school property.
2. See also Stonebanks (in press) on the impact of residential schools on Canadian aboriginal peoples.
1. Salkind (1990, p. 361) defines personality as "the pattern of behaviours and thought that characterizes individuals, distinguishes them from others and remains relatively stable throughout their lives." A longitudinal study supports these findings (DiGiulio, 2001). Researchers discovered that half of the children with behavior problems in the fourth grade (including fighting, stealing, or lying) were arrested by age fourteen. Of those, 75 percent were repeatedly arrested at least three times by the time they were aged eighteen years.
2. He found that 35 to 40 percent of children who were described as being bullies in Grades 6 through 9 were convicted of at least three officially registered crimes by age twenty-four. Only 10 percent who were not described as bullies ended up with convictions later in life.
3. Hall (1999) cites research that provided some evidence to suggest human aggression is biologically determined (Thiessen, 1976). Smith (1995) summarized a large body of literature examining genetic influences, concluding that they have little impact and that most aggression is shaped by environmental factors.
4. Cesare Lombroso in the latter part of the nineteenth century was known for measuring the skulls and ears of notorious male criminals but failed to establish a clear link. William Sheldon, a U.S. criminologist known as the father of somatotyping, was more successful in linking aggression to physique and temperament. There have
also been numerous studies on the linkage between violence and the presence of the
extra Y chromosome in men, but these are again inconclusive. Studies of identical
NOTES TO PAGES 131--167
253
twins provide more concrete evidence that genetics is a potent predictor of aggression.
5. Hall (1999) cites a number of studies on the impact of hormones on aggression, including Berkowitz (1993), Mazur (1983), Thiessen (1976), Renfrew (1997), all of which find a link between hormones and environmental influences that result in aggressive behavior. Renfrew reports evidence that suggests a mediating connection
between the male hormone testosterone and aggressive behavior.
6. Lanctot (2001) reports a correlation in the increase of aggressive tendencies in girls with the onset of early puberty, particularly as this plays out in their interactions with older boys. Moretti (2002) reports increased conduct disorder in girls around age sixteen.
7. Reena Virk, Jamie Dufour, and Dawn Marie Wesley (Shariff, 2003).
8. Prinsloo and DuPlessi (1998, p. 11) describe this as "awakening a positive attitude to fellow human beings and awakening a sense of . . . social conscience" (as cited in DiGiulio, 2001). South African studies have found that for girls especially, the family is a formidable shaper of self-concept (Marjoribanks & Mboya, 1998).
9. Cited in Hall (1999), Glueck and Glueck's (1962) well-known study on the relationship between family environment and criminal or violent tendencies identifies a range of sociocultural influences that include hostile treatment and erratic punishment. Numerous others have found a correlation between child abuse, poor
parenting, neglect, and aggression in children. James (1995) identifies three familial characteristics that consistently distinguish the development of violent tendencies in young people, especially those from low socioeconomic groups: (1) severe and erratic punishment bordering on abuse; (2) marital discord, including frequent
observing of spousal abuse; and (3) a high level of parental irritability. James suggests a causal relationship between a hostile caregiver and aggression in children in later life.
10. This was true in the cases of Reena Virk, Jamie Dufour, Dawn-Marie Wesley, and
other girls who engaged in extreme violence that were studied by 1997.
1. I wish to acknowledge and thank Myles Ellis, director of Economic and Member
Service, of the Canadian Teachers' Federation for permission to publish this resolution.
2. The complainants include the Dufour family, who commenced civil litigation on
behalf of their daughter Jamie Dufour but abandoned the case; Azmi Jubran's human
rights case, in which the decision was appealed and ruled in favor of the school;
Jane Forin, who joins Leanne Dufour and Nasimah Nastoh in raising awareness
of the issues; twelve parents in Teulon, Manitoba, Canada, who made their children's experiences with the school public through the CBC National News; and
Emmett Fralick's parents (Emmett also committed suicide). Similar sentiments have
been verbally raised by many concerned parents at public forums on bullying that
I attended, including a parent workshop held during the annual conference of the
British Columbia Parent Advisory Council on May 3, 2002.
3. Personal communications received by parents Jane Forin, Nasim Nastoh, Jamie
Dufour's mother, and Nancy Knight are among those that confirm a "wall of
defense" -- a term coined by Jane Forin of Courtney, British Columbia, Canada.
254
NOTES TO PAGES 167--203
The pattern of denial is also evident in court documents filed in several actions
against schools for failing to protect victims of bullying.
4. All information provided here with respect to the named cases of bullying (whether taken from publicly available court documents or cited with parental permission)
is based on public information -- either from the media or from the victims, their
families, or both. No information has been used here without their permission.
Neither the author nor the publisher accepts liability for information that might
have been inaccurately reported by the media or for any false accusations contained in filed court documents.
5. Andrew Forin, who was not involved in bullying but filmed a bullying incident
and was manipulated into selling it to the media, was suspended for making the
school look bad. Azmi Jubran put up with three years of bullying before punching a perpetrator in the stomach. He was suspended, but his perpetrators were
not disciplined. In one case, an Ontario boy was jailed for four months without bail for writing a story titled "Twisted" about retaliating against his perpetrators.
6. For example, in the wake of well-publicized cases of bullying in the last six years, blanket zero-tolerance policies have been widely adopted in schools as seemingly sensible and efficient ways to curb bullying. In Chapter 7, I explain why these policies are not as sensible or effective as they appear.
7. The sources of these personal communications with school administrators cannot
be disclosed because of ongoing consultation to resolve some of the heated and
sensitive issues currently underway at the school.
1. See Michel Foucault, Discipline and Punish (1995), on using panoptical surveillance in prison institutions for the disciplining of docile bodies.
2. See Fuller (1964).
3. Communications Act of 1934 (Wikipedia, 2007).
4. Retrieved from http://www.okhouse.gov/Committees/CommitteeReports/7017.doc.
August 21, 2007.
5. Illinois Social Networking Prohibition Act (State of Illinois, 2007). Retrieved from http://www.ilga.gov/legislation/billstatus.asp?DocNum=1682&GAID=9&GA=
95&DocTypeID=SB&LegID=29749&SessionID=51 August, 25, 2007.
6. Popular Web sites fitting this definition include MySpace (http://www.
myspace.com/), Friendster (http://www.friendster.com/), and LiveJournal (http://
www.livejournal.com/). This definition, however, could potentially cover a much
broader range of Web sites. Many news Web sites such as Slashdot (http://
slashdot.org/) and blogs such as RedState (http://www.redstate.com/) permit both
public profiles and personal journals. Amazon (http://www.amazon.com/) allows
personal profiles including photos, interests, and contact information. In addition, many media companies such as News.com (http://news.com) publisher CNET Networks (http://www.cnetnetworks.com/) permit users to create profiles displaying photos and other personal information, as well as sending e-mail to other members.
Some popular chat services include ICQ (http://www.icq.com/), AOL Instant Messenger (http://www.aol.com/), and Yahoo! Chat (http://messenger.yahoo.com/chat).
7. For more information, contact P.Tsatsou@lse.ac.uk.
NOTES TO PAGES 203--230
255
8. Retrieved from http://www.legifrance.gouv.fr/WAspad/UnTexteDeJorf?numjo=
INTX0600091L.
1. ("Les Veilles Gardes: hypothèses sur l'émergence des normes, l'internormativité et le désordre à travers une typologie des institutions normatives," 1996, p. 233). See also Macdonald (1986). For a recent application of this normative typology to the laws of close personal relationships, see MacDonald and McMorrow (2007).
2. These assumptions are first, centralism: the belief that law can be traced to a single official institutional source. Second is monism: the belief that normative activity is coherent. Third is prescriptivism: the belief that law is a social fact existing above and apart from those it claims to regulate. Finally there is positivism: the belief that law can be identified on the basis of a specific test of validity. From a critical legal pluralist perspective, centralism, monism, prescriptivism, and positivism appear for what they are: a set of interpretive commitments, not universal truths; they represent beliefs not facts, which a critical legal pluralism invites us to reject.
3. McMorrow explains: "For example, a Roman Catholic kid's grandmother may give
him fish sticks for lunch every Friday because in the pre-Vatican Council II faith she was brought up in, eating meat on Fridays was forbidden. Today the official position of the Church is different; nevertheless that child may believe that it is wrong to eat meat on Fridays because that is the norm at home. Or, perhaps he feels obligated to eat whatever grandmother makes him; thus, in deference to her authority, he does not complain even though he does not really like them."
4. See also Macdonald (2002).
5. I have presented some of this research in Chapter 6 and also at conferences at the University of Oxford in the United Kingdom, at the University of Grenada in Spain, and at the American Education Research Association Conferences in San Francisco
(2006) and Chicago (2007).
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Cases
Beidler v. North Thurston Sch. Dist., No. 99-2-00236-6 (Thurston Cty. Super. Ct., July 18, 2000).
Hill v.v. Church of Scientology of Toronto, 2 S. C.R. 1130 at 1175 (1995).
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Dufour v. Howe Sound Board of Education (2000).
Jubran v. North Vancouver School Distr. No. 44, B. C. H.R. T.D. No. 10 (Q. L.) 221
(2002).
Barrick Gold Corp. v.v. Lopehandia, O. J. No. 2329 (2004).
Bryson v. News America Publ'ns, Inc. , 672 N.E. 2 d 1207 (Ill. 1996).
Colour Your World Corp. v. Canadian Broadcasting Corp., 38 O.R. (3 d) 97 (1998).
Cullen v. White, WASC 153 (2003).
Doe v.v. GTE Corp., 347 F.3 d 655, 660 (7th Cir. 2003).
Gould v. Regina (East) School Division No. 77, 3 WWR 117 (Sask.) (1997).
Hill v. Church of Scientology of Toronto, 2 S. C.R. 1130 (1995).
Hunter v. Board of Education of Montgomery County, 439 A. 2 d 582 (Md.1982).
I. M. L. v.v. State, 61 P. 3 d 1038 (Utah, 2002).
Newman et al. v. Halstead et al., BCSC 65 (2006).
Newton v.v. Vancouver, 46 B. C.R. 67 (1932).
Parmiter v. Coupland, 6 M.&W. 105 (1840).
Ross v. Holly (2004).
Stratton Oakmont, Inc. v.v. Prodigy Services Co., WL 323710 (N.Y. Sup. Ct., 1995).
Times v. Sullivan, 376, U. S. 254 (1964).
Vaquero Energy Ltd. v.v. Weir, ABQB 68 (2004).
Vitzelly v. Mudies Select Library Ltd., 2 Q.B. 170 (1900).
Wagner v.v. Miskin, 660 N. W. 2 d 593 (N.D. Sup. Ct., 2003).
Williams v.v. Eady, 10 TLR 41 (1893).
259
260
CONFRONTING CYBERBULLYING
World Wrestling Fedn. Entm't Inc. v. Bozell, 142 F. Supp. 2 d 514, 534 (S.D. N.Y. 2001).
Zeran v. America Online, Inc., 958 F. Supp. 1124, 1134 (E.D. Va) aff'd, 129 F.3 d 327
(4th Cir. 1997).
A. B. v. State of Indiana, No. 67A01-0609-JV-372, 2007 Ind. App. LEXIS 694
(Ind. Ct. App. Apr. 9, 2007).
Bethel School District No. 403 et al. v. Fraser, a minor, et al., 478 U. S. 675 (1986).
Beussink v. Woodland R-IV School District, 30 F. Supp. 2 d 1175 (E.D. Mo. 1988).
Emmett v. Kent School District No 413, 92 F. Supp. 2 d 1088 (WD Wash. 2000).
Garrity v. John Hancock Mutual Life Insurance Co., 18 IER Cases 981 (Mass. Dist. Ct.
2002).
Irwin Toy Ltd. v. Québec (Attorney General), 1 S. C.R. 927 (1989).
J. S. , a Minor v. Bethlehem Area School District, 757 A.2 d 412, 422. (Pa. Cmwlth.
2000).
Lutes v. Board of Education of Prairie View School Division No. 74, 101 Sask R 232
(1992).
Morse v. Frederick, 551 U. S.
(2007).
New Jersey v. T. L. O. , 469 U. S. 325 (1985).
People v. B. F. Jones, 62 Mich. 304 (1886).
People v. Carlos Overton, 20 NY2 d 360 (1967).
R. v. D. W., B. C. J. No. 627 (2002).
R. v. M. R. M., 3 S. C.R. 393 (1998).
R. v. Oakes 1, S. C.R. 103 (1986).
Singleton v. Board of Education, 894 F. Supp. 386 (D. Kan. 1995).
Sullivan v. Houston Independent School District, 307 F. Supp. 1328, 1340
(S.D. Tex. 1969).
Tinker v. Des Moines Independent Community School District, 393 U. S. 503 (1969).
United States of America, Plaintiff, v. Jake Baker, 890 F. Supp. 1375 (E. D. Mich.
1995).
Davis v. Monroe County Bd. of Ed., 526 U. S. 629 (1999).
Jubran v. North Vancouver School District et al., No. 44 B. C. H.R. T.D. No. 10 (Q. L.) 221 (2002).
Robichaud v. Canada (Treasury Board), 2 S. C.R. 84 (1987).
Ross v. New Brunswick School District No. 15, 1 S. C.R. 825 (1996).
A. B. v. State of Indiana, No. 67A01-0609-JV-372, 2007 Ind. App. LEXIS 694 (Ind. Ct.
App. Apr. 9, 2007).
Lutes v. Board of Education of Prairie View School Division No. 74, 101 Sask. R 232
(1992).
CASES
261
A. B. v. State of Indiana, No. 67A01-0609-JV-372, 2007 Ind. App. LEXIS 694 (Ind. Ct.
App. Apr. 9, 2007).
Chamberlain v. Surrey School District No. 36, 4 S. C.R. 710, 2002 SCC 86 (2002).
Lutes v. Board of Education of Prairie View School Division No. 74, 101 Sask R 232
(1992).
Davis v. Monroe County Bd. of Ed., 526 U. S. 629 (1999).
Tinker v. Des Moines Independent Community School District, 393 U. S. 503 (1969).
Index
A. B. v. State of Indiana, 114--116
Acceptable Use Policies (AUP), 201
attention deficit disorder (ADD), 130
AUP. See Acceptable Use Policies
ADD. See attention deficit disorder
Australia
adults
cyberbullying, misconduct in, 12--13
cyberbullying by, 40, 43, 148, 213
cyberbullying perceptions of, 148
NetAlert filters in, 106
Internet, cyberspace and, 102, 103--104, 105
Balfour, C., 15
Banach, M., 49
age-crime curve, 131
Barrick Gold Corp. v. Lopehandia, 82
Bartini, M., 23
ALA. See American Library Association
Alexander, J., 23
Basen, I., 178
Almqvist, F., 23
Bates, J. E., 23
Amazon.com, 195
BCCOT. See British Columbia College of
America Online (AOL), 86
Teachers
American Library Association (ALA), 176,
The Beast Within (Boyd), 10
Becta schools e-safety site, 207
American Life Study, 142
Bedo.com, 48
behavior
antiauthority cyber expression
legal system and, 15
Beheshti, J., 223
networking sites and, 8
Beidler v. North Thurston School District
in peer-to-peer bullying, 8
Number 3, 10
students and, 8
Bellamy, L., 66
victims of, 8
Belsey, B., 40
AOL. See America Online
Bennet, R., 23
Apple, M. W., 101, 180, 220, 227, 229
Bernstein, A., 79, 80, 82, 83, 84
Are You There God? It's Me, Margaret
Berson, I. R., 51
(Blume), 178
Berson, M. J., 51
Besag, V. E., 36
Bethel School District No. 403 et al. v. Fraser,
Ashford, M. W., 25
a minor, et al. , 118
Askew, S., 27
Bettelheim, B., 226
263
264
INDEX
Betthelheim, B., 179
punishments, consequences for, 37, 38,
racism and, 32
religion in, 30
blogs, 199
Bonanno, R. A., 44
sexual abuse, harassment and, 32, 35, 51,
Boulton, M., 26, 35, 36, 37, 44, 143, 168
Bowler, L., 223
societal influences on, 133
special needs children and, 33, 35
Boyd, N., 10, 130, 131, 132, 135
Brail, S., 49
teachers and, 26--27, 91--92, 168
Bringelson, C., 178
British Columbia College of Teachers
toys and, 30
(BCCOT), 89
in U.S., 25
British Columbia Human Rights Tribunal, 141
British Columbia School Act, 194
Burgess, A., 178
Bryson v. News America Publ'ns, Inc. , 86
Bukowksi, W., 28
Campbell, M., 23, 41, 42, 43, 101
Canada
ADD and, 130
BCCOT and, 89
age-crime curve in, 131
biology and, 129
Charter of Rights and Freedoms in, 15
in Britain, 25
The Current, 76
bystanders and, 36
cyberbullying, misconduct and, 12, 76--77,
characteristics, types of, 22--24, 25, 27--28,
complaints of, 167
Media Awareness Network in, 222, 240
cyberbullying, misconduct vs. , 18
racism in, 220
as developmental problem, 130
Safe Schools Act in, 203
SSHRC and, 234
environmental influences on, 133--134
Supreme Court of Canada, 83
ethnicity in, 30
Canadian Charter of Rights and Freedoms, 15,
Canadian Teachers' Federation (CTF), 165,
face-to-face, 23
FAS in, 130
Captain Underpants (Pilkey), 178
Carlton, J., 23
group effect of, 28
Cartwright, N., 24--25, 26, 27, 169
homophobic harassment in, 25--26, 32, 51,
hormones and, 131
CDA. See Communications Decency Act
censorship
cyberbullying and, 18, 140, 159, 164--165,
peer inaction in, 36
of Facebook, 180
perceptions in, 30
of Internet, cyberspace, 180, 243
INDEX
265
objects of, 177
Council of Europe Draft Convention, 201
Council of Europe Media Division, 201
in schools, 164--165, 220--221, 226
Covell, K., 160
of self, 174
covert bullying, 31--32, 34--35
of sex, sexuality, 178
stakeholders and, 159
Creany, A. D., 177
student awareness of, 226--230
crime
in U.S., 181
age-crime curve and, 131
young adult novels and, 177--178
cyberbullying as, 42
Center for Safe and Responsible Internet Use
(CSRIU), 41
parents vs. children and, 131
child abuse, 154
Critical Legal Literacy Model
child protection laws, 152--156
concept map of, 231
Children's Internet Protection Act (CIPA), 198
for education, 218--219, 227--228, 231
China
stakeholder model in, 232--233
cyber-vigilantism in, 66
Internet, cyberspace and, 64--65
Crump, A. D., 37
Kuso in, 63
CSRIU. See Center for Safe and Responsible
Little Fat Boy in, 64
Internet Use
Piggy in, 64
CTF. See Canadian Teachers' Federation
sexual abuse, harassment and, 64--65
Cullen v. White, 83
technology in, 62
Chinese Informational Industrial Department,
cyberbullying, misconduct, 23. See also
antiauthority cyber expression; cyber
Chomsky, N., 183
libel; mobile phone bullying; peer-to-peer
Christian-Smith, L. K., 180, 220
cyberbullying
anonymity of, 44
Churchill, A., 10
civil liberties, 9
civil rights jurisprudence, 18--19, 140--142
blame for, 10
claims
boundaries in, 61
of school boards, 237
schools administrators and, 237--238
Canada and, 12, 76--77, 203--205
of stakeholders, 234, 235--241
CDA and, 85
of students, 239
censorship issues with, 18, 140, 159,
164--165, 174--175, 214--215, 227
A Clockwork Orange (Burgess), 178
characteristics, types of, 39--45, 50, 147,
Coie, J., 23
Columbine High School, 2
as child abuse, 154
communication
child protection laws and, 152--156
in cyberspace, 45--46, 101, 103
in schools, 117
civil liberties and, 9
teacher vs. student, 239
complaints of, 167
Communications Decency Act (CDA), 85
constitutional considerations in, 114--116
concept map, 231
as crime, 42
Convention of the Rights of the Child,
CSRIU and, 41
digital literacy and, 108, 227
Coonan, Helen, 105
Costabile, A., 23
266
INDEX
cyberbullying, misconduct ( cont. )
punishment, consequences for, 18--19, 109,
education and, 14, 73--74, 106, 118, 198,
reactive approach to, 231--232
in England, 13
reports, rumors of, 143, 149, 150--151, 152
responsibility for, 90, 183, 186, 207, 213
schools and, 2--3, 7--8, 90, 109--110,
female perpetrators of, 50--51, 67
female victims of, 49--50, 144
sexual abuse, harassment and, 45, 48--49,
in France, 203
freedom of expression and, 76, 87--88
SNERTs and, 22
in South Korea, 71
global threshold of, 73
stakeholders and, 16
happy slapping as, 201, 203, 209
statistical data on, 145--147, 148, 149--150
homicide and, 12
students and, 60--61, 108, 183--185
homophobic harassment in, 45, 48--49,
suicide and, 12, 70--71, 112--113
teachers and, 13, 91, 92--93, 112, 152, 162,
judicial decisions on, 45, 110--111, 186,
technology of, 14, 39--40, 41, 61
traditional bullying vs. , 18
Kuso as, 63
urgency of, 166
legal system and, 9, 11, 13--14, 15, 16, 17,
59, 92, 155--156, 192--195, 200, 202, 205,
volenti non fit jura and, 93
legal vs. conduct issues, 75
legislation for, 6, 153, 180, 196, 203--204
Cyberbullying: Issues and solutions for the
male perpetrators of, 51--52, 139--140, 144
school, the classroom, and the home
(Shariff), 13
media sensationalism and, 173
cyber libel, 59
messages in, 61
mobile phones and, 69--70, 71, 201--202
Montreal research on, 145--152
defamation and, 80--81, 84--85
definition of, 79
education and, 160
NGOs and, 108
nonviolent meaning in, 114
in Japan, 67
normative typology of, 214, 229
litigation for, 84
negligence and,
overt, 43
responsibility for, 183
parents, parenting and, 108
tort law and, 88
permanence of, 45
Cyber Terror Response Center, South Korea,
physical forms of, 42
cyber-vigilantism, 66
pluralism vs. positivism, 218, 227,
Darwin, C., 100
policy guidelines for, 15, 244--245
Davidson, K., 44
political conflicts and, 6
Davis v. Munroe, 141--142, 228--229
pranks in, 144
Dawson College, Montreal, 2
INDEX
267
Ehrensal, P.A.L., 9
defamation, 60
Eitel, P., 37
Elbaz-Luwisch, F., 226
Deleting Online Predators Act (DOPA),
England, 13
environment
d'Eon, J., 66
Internet, cyberspace and, 117, 198
Dibbell, J., 49
of schools, 140--141, 161, 172, 230--232,
Dickie, M., 66
Esmail, A., 244
EU Kids Online, 203
digital literacy
European Commission, 201--202, 203
European Union (EU)
definition of, 107
Council of Europe Draft Convention and,
institutions and, 107
Council of Europe Media Division and, 201
of Mindset 2, 106
teachers and, 221
EU Kids Online and, 203
digital public, 39
European Commission and, 201--202
DiGiulio, R. C., 15, 24, 28, 29, 33, 38, 39,
Safer Internet Plus Programme and,
discrimination
Eve teasing, 72
in judicial decisions, 113
Facebook, 47
censorship of, 180
Dodge, K., 23
Doe v. GTE Corp. , 87
employer use of, 81
freedom of expression on, 242
Don't Suffer in Silence, 205
learning on, 192
DOPA. See Deleting Online Predators Act
as networking site, 13, 41, 45--46, 47--48,
education. See also teachers
privilege and, 88
ALA and, 176, 178, 199, 200, 223
blogs as, 199
safety, privacy of, 152
school boards and, 181
Critical Legal Literacy Model for, 218--219,
Farrow, J., 178
critical thinking and, 222
FAS. See Fetal Alcohol Syndrome
cyberbullying and, 14, 73--74, 106, 118,
females
cyber libel and, 160
Internet, cyberspace and, 198--199, 222,
Ferron, J. M., 51
learner-centered design in, 225
Fetal Alcohol Syndrome (FAS), 130
library supports for, 199--200
mission disruption and, 118--121
parents, parenting and, 176--180
Finn, J., 49
Flood, S., 168
substantive law and, 227
Flynn, R., 204
YALSA and, 200
Fonzi, A., 23
Education Amendment Act, 204
Forin case, 173
268
INDEX
France, 203
Franek, M., 9
Hanna, B. W., 79, 80, 82, 83, 84
Fratina, S., 73
freedom of expression
Harden, G., 190
Harris, M., 46
on Facebook, 242
on MySpace, 77--78, 114--115, 116, 184
Harry Potter book series, 179
outside schools, 120
safety, privacy vs. , 109--114
Hawker, D., 26, 35, 36, 37, 143, 168
Haynie, D. L., 37
teachers and, 219
in U.S., 87
freevote.com, 48
Friendster, 196
Herbert, G., 36
Garbarino, J., 139
Gee, J. P., 244
Higginbottom, N., 105, 106, 209
gender
Hill v. Church of Scientology, 10, 83
bullying and, 27, 51, 129, 131, 138,
Hillery, B., 36
Hinduja, S., 41
hormones in, 133
Hoff, D. L., 3
males and, 139
Hogg, C., 70
Holocaust, 7
suicide vs. homicide rates in, 132--133
homicide
Genta, M. L., 23
cyberbullying, misconduct and, 12
Gibson, C., 68
Gill case, 152
Internet, cyberspace and, 12
Girard, D., 105, 159, 160, 183, 185
peer-to-peer cyberbullying and, 4
Glaser, J., 113
homophobic harassment
Gleeson, D., 24--25, 26, 27, 169
in bullying, traditional, 25--26, 32, 51,
Glover, D., 24--25, 26, 27, 29, 33, 34, 169
Goff, H., 9
in cyberbullying, 45, 48--49, 131--132, 145
teachers and, 175
Hoobler, G., 49
Gould v. Regina, 91
Hoover, J. H., 23
Howe, R. B., 160
Gramsci, A., 9
Hunter v. Board of Education of Montgomery
Great Britain
County, 90
Becta schools e-safety site and, 207
Don't Suffer in Silence, 205
identities
Professional Association of Teachers in,
in India, 135
Wired Safety and, 205
in Japan, 135
Grodzinsky, F., 49
If Men Had Periods (Lanteigne), 178
INDEX
269
Illinois Social Networking Prohibition Act,
NetAlert filters and, 105--106, 197
parents and, 106
I. M. L. v. State, 87
PEW/Internet study on, 142--145
India
responsibilities and, 225
cyberbullying, misconduct in, 12, 71--74
Safer Internet Plus Programme and, 202--203
Eve teasing in, 72
safety policies for, 208
Information Technology Act, 72
school boards and, 182
mobile phone bullying in, 71
slander on, 65
sexual abuse, harassment and, 73
social identities in, 135
social hierarchies in, 137
technology in, 72
sovereign borders and, 202--203
Inglis, F., 220
stakeholders and, 156
Integard, 106
stranger danger and, 197
Internet, cyberspace
abuse of, 191
adults and, 102, 103--104, 105
teachers and, 170
as agency tool, 185
Web portals and, 223
American Life Study on, 142
Internet Literacy Handbook, 201
Ipsos-Reid poll, 77
AUP and, 201
blogs and, 199
boundaries on, 10
Jalonge, M. R., 177
child pornography on, 7
Japan
assault in, 68
as communication tool, 45--46, 101, 103
computer use in, 136
consent for, 195
cyberbullying, misconduct in, 12, 66--71
critical thinking and, 222
cyber libel in, 67
cyber-vigilantism on, 66
female perpetrators in, 67
flaming in, 67
digital literacy and, 104--105
identities in, 135
DOPA and, 195--198, 200, 223, 228
education and, 198--199, 222, 228, 231
ijime-jisatsu (suicide) in, 70--71
European Commission and, 201--202
MEXT of, 12
mobile phone bullying in, 69--70
guidelines for, 191
netto-ijime in, 66
homicide and, 12
peer groups in, 68
human involvement in, 190
technology in, 66
as learning environment, 117, 198
legislation for, 6, 153, 180, 196, 203--204
library supports and, 199--200
Jiwani, Y., 31, 32, 33, 34, 169
Johnny, L., 61, 108, 159, 164, 175, 176, 209,
litigation and, 60
Joseph, S., 23
Jubran v. North Vancouver School District
No. 44, 25, 26, 33, 40, 51, 141, 167
270
INDEX
judicial decisions
as consequence, 193
on cyberbullying, 45, 110--111, 186,
Constitutional law and, 17
human, civil rights jurisprudence, 18--19,
discrimination in, 113
as learning form, 192
legislation and, 6, 153, 180, 196, 203--204
Kahn, K. B., 113
managerial model in, 194
Kapoor, G., 72
moral instincts and, 194
normative quality of, 193
Keene, L., 226
prescriptive law in, 194
Kendall, P. E., 117
substantive law and, 227
Khoday, A., 204
tort law and, 17
Kincheloe, J. L., 101, 227, 229
Kiyonaga, K., 68
Leonard, J., 49
Knight case, 51, 79, 86, 87, 167
Leong, M., 8
Knobel, M., 9, 40, 61, 103--104, 105, 106,
Lewak, R. W., 133
109, 160, 186, 192, 198, 215, 221, 227,
Knowledge Producing Schools, 244
Lidsky, L. B., 84
Limber, S. P., 23
Kochenderfer-Ladd, B., 37
LinkdIn, 41
Kresanov, K., 23
literacy, 201, 219--221, 244. See also Critical Kumpulainen, K., 23, 37
Legal Literacy Model
Kuso, 63
Little Fat Boy, 64
LiveJournal, 196
Lanctot, N., 131
Lord of the Flies (Golding), 3, 4, 6, 11, 78,
Lankshear, C., 9, 40, 61, 103--104, 105, 106,
109, 160, 186, 192, 198, 215, 221, 227,
Lost, 5
Lost Boys (Garbarino), 139
Large, A., 223
Lutes v. Board of Education of Prairie View
School Division No. 74, 114
Lawrence, D., 23
Ma, X., 23
Leander, K., 227
Macdonald, R. A., 212, 221, 245
learning, 244
Macedo, D., 183
adult vs. child learning, 223--224
MacKay, A. W., 81, 89, 114, 121,
on Facebook, 192
MacKinnon, R., 49
legal system as, 192
Magsino, R., 81
motivations for, 193
males
legal approach, pluralistic, 11
gender and, 139
as perpetrators, 51--52, 139--140, 144
legal system
for antiauthority cyber expression, 15
Malicious Communications Act, 205
bullying and, 2, 9, 15, 16, 17, 59, 92,
Manley-Casimir, M., 81, 159, 164, 175, 176,
155--156, 192--195, 200, 202, 205, 212,
material and substantive disruption, 116--118
INDEX
271
Nansel, T. R., 37
McCarthy, P., 23
National Crime Prevention Council (NCPC),
McCormick, N., 49
McDougall, A., 220
NCPC. See National Crime Prevention Council
Nelson, G. E., 133
Nesset, V., 223
McMillin, D. C., 135
NetAlert filters, 106
McMorrow, T., 4, 5, 11, 190, 192, 193, 209,
networking sites
antiauthority cyber expression and, 8
McVeigh, B. J., 68
Facebook as, 13, 41, 45--46, 47--48, 72, 102,
media
antiauthority cyber expression in, 8--9
Friendster as, 196
LinkdIn as, 41
LiveJournal as, 196
sensationalism and, 173
MySpace as, 39, 41, 45--48, 72, 102, 195,
Media Awareness Network, 222, 240
Merchant, K., 66
Wikipedia as, 195
MEXT. See Minister of Education, Culture,
Sports, Science, and Technology
Mindset 1
New Jersey v. T. L. O. , 122
Newman et al. v. Halstead et al., 84
Newton v. Vancouver, 78
Mindset 2
NGOs. See nongovernmental organizations
digital literacy of, 106
Nguyen, L., 105, 159, 160, 183, 185
Mindset 1 vs. , 95
Noll, E., 175
minimal impairment test, 242--243
nongovernmental organizations (NGOs), 108
Minister of Education, Culture, Sports,
Science, and Technology (MEXT), 12
Nuttal, C., 66
Mitchell, A., 66
Mitchell, K. E. W., 117
O'Connell, P., 36
Mitchell, K. J., 49, 50, 134, 144
OCT. See Ontario College of Teachers
mobile phone bullying, 69--70, 71, 201--202
Olsen, G. W., 23
Montgomery, K., 220
Olweus, D., 23, 25, 28, 29, 31, 34, 38, 130,
O'Moore, A. M., 36
Morita, Y., 68
Ontario College of Teachers (OCT), 89, 162,
Morse v. Frederick, 119--120, 121
Ontario Court of Appeal, 82--83
Ontario Education Act, 89, 91, 180, 203
Mynard, H., 23
MySpace
Overpeck, M., 37
freedom of expression on, 77--78, 114--115,
parents, parenting
as networking site, 39, 41, 45--48, 72, 102,
curriculum rights of, 179
schools on, 199
cyberbullying and, 108
cyberspace and, 106
Naito, A., 66
educational resources and, 176--180
Nakamoto, M., 66
intervention by, 176
272
INDEX
parents, parenting ( cont. )
Critical Legal Literacy Model and, 218, 229
wall of defense and, 237
Parker, J. C., 89
Professional Association of Teachers, Britain,
Patchin, J., 41
peer-to-peer cyberbullying, 3--5, 164
Protection from Harassment Act, 205
anonymity and, 4
psychological bullying, 25, 34--35
antiauthority cyber expression, 8
punishment, consequences
for bullying, traditional, 37, 38, 240--241
homicide and, 4
for cyberbullying, 18--19, 109, 174,
impact of, 82
punishment for, 174
suicide and, 4
racism
teachers and, 240
bullying and, 32
tort law and, 88
in Canada, 220
Pellegrini, A. D., 23
schools and, 173
People v. B. F. Jones, 110
People v. Carlos Overton, 122
RateMyProfessor.com, 48
RateMyTeacher.com, 48
Perkins, C., 169
Rauste-Von Wright, M., 27
perpetrators
Razack, S., 19, 32, 49, 169, 176
of bullying, traditional, 29--31
Reicken, T., 29
Reiss, A. J., 130
in Japan, 67
males as, 51--52, 139--140, 144
Perry, D. G., 28
Rios-Ellis, B., 66
Perry, L. C., 28
Peterson, R., 159
Roher, E., 24--25, 39, 46, 48, 76, 117, 175, 204
Petress, K., 226
Rosen-Reynoso, M., 32, 131, 132
Petrie, G., 24
Ross-Epp, J., 169
Pettit, G. S., 23
Ross v. Holly, 83
Ross v. New Brunswick School District No.
Philips Valentine, L., 220
15, 140
Phillips, W. L., 22, 78, 137, 152
Roth, J. A., 130
Rowling, J. K., 179
Piddocke, S., 81
Rusk, J., 174
Pierre, D. B. C., 245
Rylance, J., 23
Piggy, 64
Pilla, R. S., 37
Sacco, M., 177
pluralism
Safe Schools Act, 203
archetypes of, 228
Safer Internet Plus Programme, 202--203
safety, privacy
Becta schools e-safety site and, 207
positivism vs. , 218, 227, 245
of Facebook, 152
policy guidelines, 15
freedom of expression vs. , 109--114
on Internet, cyberspace, 208
Pollack, W., 139
Wired Safety and, 205
Salmivalli, C., 28, 29, 31, 35, 44
Sankey, D., 47
positivism
Sarkar, M., 240
INDEX
273
Saylor, K., 37
Scheidt, P., 37
zero-tolerance approach in, 23, 171, 172,
212--213, 227, 232, 238, 241--242
school boards
Schuster, B., 28
claims of, 237
Schwartz, D., 23
Facebook and, 181
Sears, J. T., 37
Internet, cyberspace and, 182
Sefa-Dei, G., 169
schools and, 181
Séguin, R., 33
Stakeholder Model and, 237
Sengupta, S., 73
teachers and, 181
Senoo, Y., 12, 66, 67, 68, 69, 70, 71
September 11, 2000, 2
administrator claims in, 171--238
antibullying programs in, 23
sexual abuse, harassment
authoritarian approach of, 170--173
bullying and, 32, 35, 48--49, 51, 119,
autonomy of, 195
banned books in, 176
Becta schools e-safety site, 207
in India, 73
Shaheen, J. G., 183
blogs and, 199
Shanghai China Young Pioneers, 62
censorship in, 164--165, 220--221, 226
Shanghai Communist Youth League, 62
CIPA and, 198
Shanghai Social Science Young Pioneers
communication in, 117
Research Bureau, 62
complaints against, 167
Shariff, S., 2, 3, 4, 7, 13, 16, 22, 41, 44, 49, 50,
curriculum challenges in, 179
60, 61, 64, 71, 73, 92, 108, 109, 110, 111,
cyberbullying and, 2--3, 7--8, 90, 109--110,
114, 118, 127, 128, 130, 146, 147, 148,
149, 150, 151, 159, 161, 164, 169, 175,
educational mission disruption in, 118--121
176, 177, 179, 209, 214, 215, 220, 222,
environment of, 140--141, 161, 172,
Sharp, S., 23, 24--25, 33, 168
equal recognition in, 220
Shepherd, C., 23
freedom of expression and, 99, 120,
Shoji, J., 66
Schriever, B., 165
government influence in, 180--181
Shu, S., 23
human, civil rights jurisprudence in, 18--19,
Silburn, S. R., 23
Simons-Morton, B., 37
Internet nexus and, 122, 237--238
judicial decisions and, 140--142
Sippola, L., 28
Knowledge Producing Schools and, 244
Skiba, R., 159
litigation against, 24
slander, 65
material and substantive disruption in,
Slee, P. T., 23
Small, M. A., 23
on MySpace, 199
parent intervention in, 176
Smith, P. K., 23, 24--25, 33, 68, 168
Smith, W. J., 41
racism and, 173
Smorti, A., 68
SNERTs. See Snot-Nosed Eros-Ridden
Safe Schools Act in, 203
Teenagers
school boards and, 181
Snider, M., 43
shootings in, 23
Snot-Nosed Eros-Ridden Teenagers (SNERTs),
SSHRC and, 234
stakeholder model in, 234, 241
Social Sciences and Humanities Research
status quo threats to, 159
Council of Canada (SSHRC), 234
suspensions in, 238
274
INDEX
Song, W., 70
Tavani, H., 49
South Korea, 71
teachers. See also education
special needs children, 33, 35
autonomy of, 154
bullying and, 26--27, 91--92, 168, 240
Spitzberg, B., 49
care duties of, 88--89, 161--170
SSHRC. See Social Sciences and Humanities
Research Council of Canada
stakeholder model, 232--233, 234, 237, 241
communication and, 239
stakeholders
controversy and, 175
Critical Legal Literacy Model for, 215--218,
censorship and, 159
cyberbullying and, 13, 91, 92--93, 112, 152,
cyberbullying and, 16
cyberspace and, 156
digital literacy and, 221
minimal impairment test and, 242--243
equal recognition by, 220
religious vs. secular values, 179
freedom of expression and, 219
homophobic harassment and, 175
Steeves, V., 222
impairment of rights, 241--243
Stein, N., 32
Internet and, 170
Steinberg, S. R., 183
Stonebanks, C., 81
liability of, 89
Stratton Oakmont v. Prodigy Services Co. , 86
Strong-Wilson, T., 16, 41, 44, 111
peer-to-peer cyberbullying and, 240
students
psychological bullying vs. physical, 168
antiauthority cyber expression and, 8
responsibilities of, 156, 172, 219, 230, 239
censorship awareness by, 226--230
school boards and, 181
claims of, 239
self-censorship by, 174
communication and, 239
cyberbullying and, 60--61, 108, 183--185
technology and, 165
Internet, cyberspace and, 11, 104--105
as victims, 112, 162--165, 166
rights impairment of, 241--243
zero-tolerance approach by, 23, 171, 172,
suicide
212--213, 227, 232, 238, 241--242
bullying, traditional and, 70--71
teasing vs. bullying, 24, 25--27
cyberbullying, misconduct and, 12, 70--71,
technology
in China, 62
of cyberbullying, misconduct, 14, 39--40,
peer-to-peer cyberbullying and, 4
educational use of, 198--199, 244
suicide bombers, 6
in India, 72
Suler, J. R., 22, 78, 137, 152
in Japan, 66
Supreme Court of Canada, 83
in South Korea, 71
Survivor, 5
teachers and, 165
Telecommunications Act, 205
Takach, G. S., 252
Tanaka, T., 69
Teoh, H. J., 23
Tanner, J., 39
Terazono, E., 66
terrorism, 2
INDEX
275
Thomas, C., 77
Wallechinsky, D., 178
Time magazine, 103
Wardrop, J. L., 37
Times v. Sullivan, 87
Tinker v. Des Moines Independent Community
Web portals, 223
School District, 111, 116, 228--229
Wei, J.-Y., 12, 62, 63, 64, 65
Tolman, D. L., 32, 51, 131, 132
tort law
Welsh, D. M., 32
cyberbullying, misconduct and, 17, 74,
What Video Games Have to Teach Us about
Learning and Literacy (Gee), 244
cyber libel and, 88
Whitney, I., 23
legal system and, 17
Who Said I Can't Read This (Keene),
liability in, 17
peer-to-peer cyberbullying and, 88
Tremblay, R. E., 27
Williams v. Eady, 89
Williard, J. C., 28
United Nations International Convention of
the Rights of the Child, 154, 160, 240
Wing, C., 222
United States (U.S.)
Winkler, L. K., 226
Afghanistan and, 2
Wired Safety, Britain, 205
bullying in, 25
censorship in, 181
Wood, Tom, 105
Wood Royal Commission of 1996, 153
freedom of expression in, 87
Wright, S., 197, 198, 230, 231
Iraq and, 2
Wyman, M., 179
school shootings in, 23
terrorism in, 2
U.S. See United States
YALSA. See Young Adult Library Services
Association
Van Praagh, S., 192
Ybarra, M. L., 49, 50, 134, 144
Vaquero Energy Ltd. v. Weir, 82
Yeager, H., 66
Vernon God Little (Pierre), 1, 4, 5, 7, 245
Yoneyama, S., 66
victims
Young Adult Library Services Association
of antiauthority cyber expression, 8
(YALSA), 200
blame and, 173
of bullying, traditional, 29--31
YouTube, 13
as networking site, 41, 46, 181,
Japanese characteristics, 68--69
video downloads on, 48
public policy for, 89
Yu, K., 37
teachers as, 112, 162--165, 166
Virginia Tech University, 231
zero-tolerance approach, 23, 171, 172,
Wagner v. Miskin, 88
212--213, 227, 232, 238, 241--242
wall of defense, 167--168, 237
Wallace, A., 178
Zimmermann, H., 23
Wallace, P., 110
Zubrick, S. R., 23
Document Outline

Cover
Half-title
Title
Copyright
Contents
Figures
Tables
Preface
Acknowledgments
CHAPTER ONE Cyber Misconduct: Who Is Lord of the Bullies? INTRODUCTION Peer CyberBullying: A Lord of the Flies Syndrome?Adults as BulliesAntiauthority Cyber ExpressionA Global IssueCONCLUSION Policy GuidelinesLegal ConsiderationsTort LawConstitutional Law: Freedom of Expression versus Safety and PrivacyHuman and Civil Rights Jurisprudence: School EnvironmentREFERENCES
INTRODUCTION
CHAPTER TWO Profile of Traditional and CyberBullying INTRODUCTIONWHAT IS BULLYING? The Etymology of BullyingBullying or Teasing?General CharacteristicsPerpetrators and TargetsTypes of BullyingChanging RolesEffects of BullyingBULLYING TODAYDEFINITIONS OF CYBERBULLYING Characteristics of CyberBullying An Infinite AudiencePrevalent Sexual and Homophobic HarassmentPermanence of ExpressionOnline Social Communication ToolsPrevalence of Sexual and Homophobic Harassment Female VictimsFemale PerpetratorsMale Targets and PerpetratorsIntersecting Forms of DiscriminationCharacteristics of CyberBullyingCONCLUSIONREFERENCES
CHAPTER THREE Cyber Libel or Criminal Harassment: When Do Kids Cross the Line? INTRODUCTIONCHINESE CULTURAL INFLUENCES Case 1: Modified Photographs of a TeacherCases 2 and 3: Piggy and Little Fat BoyCase 4: Ning's Sexual Harassment of a TeacherCase 5: Internet SlanderCase 6: Cyber VigilantismJAPAN: NETTO IJIME Cases 1 and 2: Female PerpetratorsCase 3: FlamingCase 4: Pornographic Novel as LibelCase 5: Physical Assault as SlanderCultural Considerations: Ijime and Netto IjimeGakko Ura Saito: Mobile-BullyingIjime-jisatsu (Suicide Linked to Ijime)SOUTH KOREAINDIATORT LAW: CYBER LIBEL, DEFAMATION, AND SLANDERKIDS' PERSPECTIVE � THEIR OWN PRIVATE SPACE Case 1: Brad and His Online FriendsCase 2: Bram's Bad JokeCase 3: Indiana OutrageCYBER LIBEL: THE CANADIAN CONTEXTCYBER LIBEL: THE U.S. CONTEXTNEGLIGENCE, SUPERVISION, AND MALPRACTICETORT LAW, SUPERVISION, AND RISKREFERENCES
CHAPTER FOUR Student Free Expression: Do the Schoolhouse Gates Extend To Cyberspace? INTRODUCTIONSUPERVISION: DOES SCHOOL AUTHORITY APPLY IN CYBERSPACE? Exploring the Cyber ForestADULT MINDSETS AND THE DIGITAL DISCONNECT The Limitations of MindSet 1FREEDOM OF EXPRESSION VERSUS SAFETY AND PRIVACY Constitutional ConsiderationsExpression as "Material and Substantive Disruption"Expression as "Disruption of Basic Educational Mission"Nexus: Computers as School PropertyCONCLUSIONREFERENCES
CHAPTER FIVE Fostering Positive School Environments: Physical and Virtual INTRODUCTIONGENDERED INFLUENCE ON CYBERBULLYING SocializationThe Biology of BullyingGender Socialization Begins at HomeFemale Gender RolesMale Gender RolesHUMAN AND CIVIL RIGHTS JURISPRUDENCE: SCHOOL ENVIRONMENTPEW INTERNET STUDY Gender DifferencesThe Online Rumor MillThreats against Older GirlsWhy Teens Engage in CyberBullyingHomophobiaMONTREAL RESEARCH Adult PerceptionsOpinions about CyberBullyingARE CHILD PROTECTION LAWS RELEVANT TO CYBERBULLYING?REFERENCES
CHAPTER SIX Censoring Cyberspace: Can Kids Be Controlled? INTRODUCTIONTEACHERS SHAPE LAW AND SOMETIMES IMPEDE LEARNING Teachers as TargetsWhat Drives the Urgency?A Wall of DefenseTacit Condoning of Peer-to-Peer BullyingPARENT VERSUS TEEN CYBERBULLYING School Officials, School Reputations, and the "Official" StoryThe Official StorySELECTION OR CENSORSHIP? Parents as CensorsGovernment InfluenceSchool BoardsMedia Influence on Censorship and Positivist LawsRECONCEPTUALIZING LAW IN CYBERSPACEREFERENCES
CHAPTER SEVEN The Tragedy of the Commons: Lessons for Cyberspace? INTRODUCTIONLAW: A QUESTION OF INDIVIDUAL (STUDENT) DECISION MAKINGLEGAL AND POLICY RESPONSES: A FEW EXAMPLES Deleting Online Predators Act (DOPA; H.R. 5319, 2006)Educational Use of TechnologiesLibrary Support for Online EducationEuropean UnionCouncil of EuropeCouncil of Europe Draft Convention on Cyber Crime (2001, June 29)Europe's Information Society: Public Consultation � Safer Internet and Online Technologies for ChildrenSafer Internet Plus ProgramLegislation in FranceCanadian ResponsesBritish ResponsesBACK TO THE DRAWING BOARDREFERENCES
CHAPTER EIGHT Cyber Collaboration: Models for Critical Legal Pluralism in Teacher Education Programs INTRODUCTIONA TYPOLOGY OF LAWS: COMPREHENSIVE LEGAL FRAMEWORKSA CRITICAL LEGAL LITERACYA CRITICAL LEGAL LITERACY MODEL FOR TEACHER EDUCATIONPRACTICAL SOLUTIONS: ONLINE LIMITATIONSRAISING STUDENT AWARENESS OF CENSORSHIPA CONCEPT MAP: POSITIVE SCHOOL ENVIRONMENTSTHE STAKEHOLDER MODEL Poisoned Environment Step 1: Identify the StakeholdersStep 2: Validate Their ClaimsStep 3: Critically weigh each claim against the otherSchool Board ClaimsSchool Administrator ClaimsTeacher ClaimsStep 4: Minimal Impairment of RightsPoisoned EnvironmentCONCLUSIONREFERENCES
Notes CHAPTER ONECHAPTER TWOCHAPTER THREECHAPTER FOURCHAPTER FIVECHAPTER SIXCHAPTER SEVENCHAPTER EIGHTREFERENCES
Cases CHAPTER 1CHAPTER 2CHAPTER 3CHAPTER 4CHAPTER 5CHAPTER 6CHAPTER 7CHAPTER 8
Index

Table of Contents
Peer CyberBullying: A Lord of the Flies Syndrome?
Antiauthority Cyber Expression
Human and Civil Rights Jurisprudence: School Environment
Characteristics of CyberBullying
Online Social Communication Tools
Prevalence of Sexual and Homophobic Harassment
Intersecting Forms of Discrimination
Cases 2 and 3: Piggy and Little Fat Boy
Cases 1 and 2: Female Perpetrators
Case 5: Physical Assault as Slander
Gakko Ura Saito: Mobile-Bullying
Ijime-jisatsu (Suicide Linked to Ijime)
Tort Law: Cyber Libel, Defamation, and Slander
Case 1: Brad and His Online Friends
Cyber Libel: The Canadian Context
Negligence, Supervision, and Malpractice
Tort Law, Supervision, and Risk
Supervision: Does School Authority Apply in Cyberspace?
Adult MindSets and the Digital Disconnect

