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he concept of digital citizenship is premised on encouraging and developing learning opportunities for youth to develop their online proficiency, engagement and creativity, rather than focusing exclusively on the ways in which digital media can be used detrimentally. A microscopic focus on the negative aspects of digital communication usage among youth ignores the potential benefits of digital media, and the possibility for youth to engage in socially responsible digital behaviour.
Digital citizenship also involves “legal literacy,” that is, an understanding of where the law defines the line between joking, teasing, or harmless actions and criminal behaviour. As governments move towards harsher penalties for cyberbullying, it is essential that youth, as well as their parents and schools, learn the legal risks of their actions and how to protect themselves online.
The current generation of youth has grown up immersed in digital media and cannot imagine a world without immediate access to their cellular and smart phones, the Internet, Facebook, YouTube, and Google, among other networking sites and tools. It is not surprising then that researchers report that 98% of Canadian youth access digital media daily, and 93% of American teens use the Internet.
Define the Line believes that bans, filters, and zero-tolerance policies are not helpful or productive in addressing cyberbullying. What is needed is support to help youth define reasonable and realistic boundaries of responsibility and accountability; and education that raises awareness of the serious impact of cyberbullying and cyber-lurking/voyeurism, with a view to providing an alternative online information that is entertaining – but does not demean or dehumanize others.
The challenge lies in helping youth come to their own recognition of ethical and legal boundaries when encountering negative forms of online information, and fostering leadership among all stakeholders, young and old, towards social responsibility and digital citizenship.
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ne of the many challenges facing researchers and policymakers is the lack of wide-ranging statistical data across youth populations in Canada on both the incidence of bullying and cyberbullying, and the effectiveness of the various programs and strategies developed to reduce cyberbullying.
Having said that, cyberbullying has gained significant attention over the last few years in research, news media and across educational settings. Here are some facts about cyberbullying and digital use in Canada:
found that 75% of survey respondents said they believe bullying is a problem in Nova Scotia, and 60% of Nova Scotia student respondents indicate that they have been bullied.
studied 33 Toronto junior high and high schools and reported that 49.5% of students surveyed had been bullied online. In all three of these studies, a majority of participants report that they did not tell anyone about the bullying.
commissioned poll (2008) showed that 34% of Canadians surveyed knew of students in their community who had been targeted by cyberbullying in the past year while 1 in 5 were aware of teachers who had been cyberbullied. The poll also showed that almost 1 in 10 knew someone close to them who had been cyberbullied. Canadian teachers ranked cyberbullying as their issue of highest concern from the six listed options with 89% suggesting bullying and violence are serious problems in our public schools.
administered a survey of 2,474 young people aged 13-15, where over 70% of respondents reported having been bullied online and 44% reported having bullied someone at least once. The same study also revealed that many kids were unaware that cyber-space is not personal, and that flow of information is difficult or impossible to control.
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yberbullying is challenging to regulate because it is a complex issue with many factors. Technology, cultural attitudes, school practices, and student behaviour are all constantly evolving and the law is trying to keep up. New legal questions are always coming up:
The legal line indicates when cyberbullying behaviour crosses over from an issue to be dealt with by parents, students, or teachers alone, to one where courts, police, and legislators become involved. Knowing when behaviour crosses the legal line helps to define our legal rights and responsibilities. Understanding how the law deals with cyberbullying reflects where our society currently stands on this issue.
The law deals with cyberbullying through three main avenues:
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riminal law is federally regulated in Canada, so criminal aspects of cyberbullying will be consistent across the country. Criminal harassment and defamatory libel are the main prohibitions in the Canadian Criminal Code that touch on cyberbullying. Criminal harassment is found under section 264 of the Criminal Code. An important detail in the context of cyberbullying is that criminal harassment, the criminal action causing someone to feel threatened, does not need to be intentional. Defamatory libel, an offence under section 298 of the Criminal Code, consists of publishing an untrue statement that is likely to injure the reputation of a person. As cyberbullying becomes more regulated, other offences such as child pornography or hate crimes are being expanded and applied, raising many new questions.
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hile criminal law can be understood as the state regulating when the legal line has been crossed, civil law represents a conflict between people, and is focused on compensation. The civil law standard for proving a case is lower, and so even though an action may not amount to a criminal offence, it is important to know what kind of situations may leave an individual exposed to a civil action. The main cause of civil action in cyberbullying cases is defamation, where the party bringing the case to court will have to prove the damage to reputation caused by the other party’s actions. Another area of civil law that is expanding to include cyberbullying is negligence, particularly in the case of school officials.
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any Canadian provinces and other countries are attempting to tackle cyberbullying through new legislation specifically targeting the issue. Ontario’s Bill 13, An Act to amend the Education Act with respect to bullying and other matters and Quebec’s Bill 56 are two prominent examples. These cyberbullying statutes aim to clarify the roles and responsibilities of school officials and allow teachers and school boards greater powers such as suspension and expulsion to discipline and respond to cases of harassment and cyberbullying. The new laws also often include more preventive measures, such as imposing obligations on schools and boards to institute cyberbullying education and awareness campaigns. Even with these proactive measures, however, some still question whether more legislation is the answer, or whether it is education, and not legislation, that might better address the problem.
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chools have an extremely important preventative role to play in cyberbullying because they are the main arena for student interactions. However, the boundaries of their role are not always clear. Bullying that takes place at school may now easily spill over to the Internet, outside of schools’ borders.
These issues are tackled in the following Define the Line issue paper, which includes a review of four important North American cases that set precedents in the past, and discusses whether, in recent cases, schools that directly intervened with students did so legally or in violation of the students’ fundamental rights. The article ends by presenting a proactive approach for schools to foster digital citizenship as opposed to introducing zero-tolerance policies in the classroom. By accessing the full version of the article, you will be introduced to suggestions and solutions to engage students in interactive activities that are positive and proactive rather than negative and inciting the bullying of others.
For our full overview of the topic please download our .pdf
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an a person who posts hyperlinks to defamatory material be found liable for publishing defamatory material? The Supreme Court of Canada has ruled no in the case Crookes v. Newton. [1] The decision was eagerly awaited, as critics feared that the Court ruling the other way would have a chilling effect on Internet use. [2]
The court case involved Mr. Crookes suing Mr. Newton for posting hyperlinks to defamatory content on his website. Mr. Crookes argued that Mr. Newton should be found liable for the offence of publishing defamatory material. The Supreme Court disagreed. Justice Abella, writing for the majority, explained that hyperlinks should be understood as “content-neutral” in that they refer to material but do not by themselves transmit the defamatory content. Merely posting a hyperlink, therefore, does not constitute publication. However, the majority opinion did indicate that should the hyperlinker repeat the content of the link on their own site then this could attract liability.
While the Court was unanimous in its decision that the hyperlinks in question did not constitute defamatory publication, there were three separate opinions written. The range of reasons used to explain the same outcome demonstrates the complexity of this question and the challenge of adapting traditional laws of defamation to online context. Agreeing with the majority on the result but giving their own reasons, Chief Justice McLachlin and Justice Fish specified that while merely posting a hyperlink will not be defamatory, “[p]ublication of a defamatory statement via a hyperlink should be found if the text indicates adoption or endorsement of the content of the hyperlinked text.”[3] Justice Deschamps also wrote a concurring opinion, disagreeing with the majority’s position of categorically ruling that hyperlinks will not be considered as publishing defamatory material. Justice Deschamps reminded the Court that publication exists if the plaintiff can prove both that the defendant made defamatory material available to a third party and that a third party received this material in such a way that it is understood.[4] To evaluate a hyperlink, then, we must look at how available the content was to those accessing the website and whether there is proof that third parties did indeed access and receive the content. Justice Deschamps finds that in this case the hyperlinks did not meet this standard and so should not be considered defamatory.
In coming to this decision, the Supreme Court recognized that actions in defamation should weigh an individual’s right to protect their information with the public interest in protecting freedom of expression.[5] The question thus becomes whether the Court struck the right balance on this occasion. One can imagine that this decision will make it more difficult for individuals to protect themselves from online harassment and defamation. While it is clear that the original publisher of the material should be the one held ultimately responsible, reposting the content through hyperlinks undoubtedly increases the reach of and can increase the damage caused by the defamatory statements. On the other hand, it is likely that the number of lawsuits for defamation would skyrocket if everyone who had ever linked to a website were to be held liable for its content. Moreover, what happens when the contents of a website changes from innocent to defamatory after an individual has posted the hyperlink? It seems, therefore, that while some may criticize the Court for not standing up for the rights of victims of defamation, the decision can be justified by the goals of protecting freedom of expression as well as more practical considerations of limiting litigation.
[1] 2011 SCC 47, available athttp://csc.lexum.org/en/2011/2011scc47/2011scc47.pdf.
[2] Meagan Fitzpatrick, “Internet links not libel, top court rules” CBC News, October 19, 2011.http://www.cbc.ca/news/politics/story/2011/10/19/pol-scoc-hyperlink.html, accessed October 25, 2011.
[3] Supra note 1 at para 48.
[4] Ibid at para 55.
[5] Ibid at para 31.
