Cyberbullying

1. Cyberbullying A Legal Response ASBA Fall General Meeting November 18-19, 2013 – Westin Hotel, Edmonton, AB Presented by: Grace Cooke and Angela Town, Legal Counsel

2. What is Cyberbullying?

3. What is Cyberbullying?Definition – an example Cyberbullying: “any electronic communication […] that is intended or ought reasonably be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation and includes assist- ing or encouraging such communication in any way.” (Cyber-safety Act - Nova Scotia)

4. Cyberbullying Can Include… • spreading hurtful or embarrassing rumors, gossip, images or comments; • mean-spirited teasing; • abusive or sexually suggestive language; • threats and intimidation via email, texting, social media, or websites.

5. Unique Concerns • Wide audience • Infinite potential for harm • Anonymity of bullies • Permanent digital footprint

6. Social MediaSocial Networking Sites • dramatic increase in opportunity for online communication • opportunity to share intensely personal information • opportunity for the perpetuation of assaults on the integrity and dignity of victims • problem is difficult to address, given the difficulty in identifying perpetrators • ease of transmission

7. Social Media Twitter: • users send “tweets” to those who “follow them” on Twitter YouTube: • allows for pervasive downloading of homemade videos taken with smartphones Facebook: • online user profiles; • upload photos, videos, send or view comments; • Facebook “friends”; • platform for discussion/dialogue

8. Sexting • Sending sexually explicit photos or messages electronically, usually between cell phones. • Allows for internet posting of photos and forwarding to others. • Leaves permanent, irretrievable digital footprint.

9. Why are we so Concerned? • Harmful consequences • “Non-stop bullying” • Anonymity of cyber bullies • Vast unsupervised public playground • Permanent digital footprint

10. Why are we so Concerned? • Harmful consequences • “Non-stop bullying” • Anonymity of cyber bullies • Vast unsupervised public playground • Permanent digital footprint

11. Statistics • General lack of statistical data • Up to half of all bullying is believed to go unreported. • 2010 Study (Toronto): 49.5% of students surveyed had been bullied online. • WHO study: Canada ranked 26th on bullying and 27th on victimization out of 35 countries. • 2008 Study by the Canadian Teachers Federation : • 34% of Canadians surveyed knew of students in their community who had experienced cyberbullying; • 1/5 were aware of teachers who had been cyberbullied; • 1/10 knew someone close to them who had been cyberbullied; • Canadian teachers ranked cyberbullying as their issue of highest concern from six listed options with 89% suggesting bullying and violence are serious problems in our schools.

12. Statistics • General lack of statistical data • Up to half of all bullying is believed to go unreported. • 2010 Study (Toronto): 49.5% of students surveyed had been bullied online. • WHO study: Canada ranked 26th on bullying and 27th on victimization out of 35 countries. • 2008 Study by the Canadian Teachers Federation : • 34% of Canadians surveyed knew of students in their community who had experienced cyberbullying; • 1/5 were aware of teachers who had been cyberbullied; • 1/10 knew someone close to them who had been cyberbullied; • Canadian teachers ranked cyberbullying as their issue of highest concern from six listed options with 89% suggesting bullying and violence are serious problems in our schools.

13. What is being done? • Introduction of new laws that address cyberbullying • Raising awareness through social activism • Social Networks introducing cyberbullying prevention strategies

14. Facebook Anti-bullying Strategy Source: http://globalnews.ca/news/893505/past-the-bullying-breaking-point-in-canada-facebook-pushes-awareness-for-online-tools/

15. The Legal Response: A Balancing Act • School boards must balance: • Student safety • Free Speech • Access to information

16. The Legal Response: The Law and Cyberbullying - Alberta • Currently: • school-based legislation is silent on ability to discipline for off-site misconduct • Does not expressly authorize a school to discipline for off-site misconduct or off-site/online harassment or off-site cyber bullying: • district must demonstrate a nexus between the actions and the fallout at school, demonstrating that student’s conduct is injurious to the physical or mental wellbeing of others in the school or that student has displayed an attitude of wilful, blatant and repeated refusal to comply with school rules

17. The Legal Response: The Law and Cyberbullying - Alberta • Education Act • Emphasizes the importance of welcoming, caring, respectful and safe learning environments • Defines bullying • Requires school boards to develop a student code of conduct that addresses bullying behaviour

18. The Legal Response: The Law and Cyberbullying - Alberta • Definition of Bullying – Section 1(d) • “bullying” means repeated and hostile or demeaning behaviour by an individual in the school community where the behaviour is intended to cause harm, fear or distress to one or more other individuals in the school community, including psychological harm or harm to an individual’s reputation;

19. The Legal Response: The Law and Cyberbullying - Alberta • Education Act: Board Responsibilities - Section 33(2) & (3) • 33(2) A board shall establish, implement and maintain a policy respecting the board’s obligation … to provide a welcoming, caring, respectful and safe learning environment that includes the establishment of a code of conduct for students that addresses bullying behaviour. • 33(3)(d)(iii):The code of conduct must contain ... one or more statements about what is acceptable behaviour and what is unacceptable behaviour, whether or not it occurs within the school building, during the school day or by electronic means.

20. The Legal Response: The Law and Cyberbullying – Nova Scotia • New Cyber-safety Act came into force May 10, 2013 as a response to the suicide of Rehteah Parsons • Purpose: “to provide safer communities by creating administrative and court processes that can be used to address and prevent cyberbullying.” (s.2) • Makes cyberbullying a tort, for which the perpetrator can be found liable (s.21) • Parents who know that their kids might be engaging in cyberbullying can be liable themselves (s.3(2))

21. The Legal Response: The Law and Cyberbullying – Nova Scotia Definition of cyberbullying under the Act: any electronic communication…that is intended or ought reasonably be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation … (s.3.(1)(b))

22. The Legal Response: The Law and Cyberbullying – Nova Scotia • Remedies under the Act include: • an injunction to stop the cyberbullying; • compensation for any damage caused by the cyberbullying; or • any order that a court might see as appropriate (s.22(1))

23. The Legal Response: The Law and Cyberbullying – Quebec • June 2012 - An Act to prevent and stop bullying and violence in schools came into force. • The legislation amends the Education Act (Quebec) to make it mandatory for public and private schools to develop anti-bullying plans to address both traditional bullying and cyberbullying.

24. The Legal Response: The Law and Cyberbullying – Ontario • Accepting Schools Act – amends the current Education Act (Ontario) • Received Royal Assent June 2012 and came into force September 12, 2012 • Goals of the amendments are to promote a positive school environment and to address bullying in schools

25. The Legal Response: The Law and Cyberbullying – Ontario • Accepting Schools Act Summary: • “Whole-school approach” • Develop a bullying prevention and intervention plan and make the plan public; • Investigate any reported incident of bullying; • Provide support to both those students affected by bullying as well as those engaging in this behaviour; • Inform parents about bullying incidents; • Support students who want to lead activities that promote understanding, acceptance and respect for all; • Issue tougher consequences for bullying and hate-motivated actions

26. The Legal Response: The Law and Cyberbullying – BC • “ERASE Bullying” strategy was introduced by the BC Ministry of Education in June, 2012. • 10 key goals • BC government has dedicated $2 million to train educators and others to help prevent, identify and stop harmful behaviours by children and adults - whether online, at school, or in the community. • No anti-bullying legislation has been passed in BC

27. The Legal Response: The Law and Cyberbullying Other legal avenues to address bullying include: • Criminal Code • Civil Liability • Defamation • Negligence • Alberta Human Rights Act

28. RT v. Durham Catholic District School Board 2008 CFSRB 94 FACTS • A particular student, “VK”, writes on Facebook to victim: • “U don’t want me to get mad because the ill kill u right in ur sleep or school on Monday” • “I am gonna come to school on Monday and kick ur ass. I’m gonna kill you. Okay? Okay!” • Victim’s father informs vice-principal that he is concerned about his daughter’s safety. • Victim had trouble sleeping; she felt isolated; she was afraid for herself and her family. • The principal recommended that VK be expelled from all schools of the board. • In May 2008 the school board’s expulsion hearing committee expelled VK from her school only.

29. RT v. Durham Catholic District School Board2008 CFSRB 94 ISSUES • Did this infraction affect the school climate? • Should VK be expelled from her school? RESULT • Review Board upheld expulsion • The actions of the student were found to be extremely serious • “The climate of the school would have been seriously affected” if the student returned to her own school. • The Review Board ruled: • “The fear of significant harm generated by the Facebook communications and the subsequent knowledge that this was committed by one of the pupils of the school leads the board to find the school climate was negatively impacted.”

30. AB v Bragg Communications Inc. 2012 SCC 46 FACTS • The girl, “A.B.” was 15 when she discovered a fake Facebook page with her picture and a slightly different spelling of her name. • The Facebook page contained defamatory material about her physical appearance and sexual practices. • The girl sought a court order to force the internet provider to reveal who had created the page • The girl and her father had asked the courts to protect their identities.

31. AB v Bragg Communications Inc. 2012 SCC 46 RESULT • SCC ruled the girl would be able to keep her name out of court documents but refused her request to hide the Facebook page details. • With regard to protecting her identity, the Supreme Court said: While the principle of an open court and a free press are tenaciously embedded in the jurisprudence, A.B.'s interests (her privacy and protecting children from cyberbullying) are sufficiently compelling to justify restricting access to her identity. • With regard to keeping the Facebook page details secret, the Supreme Court said: it would not impose a publication ban on the part of the fake Facebook profile that contains no identifying information. • In a case involving cyberbullying, there is no need for a child to demonstrate that he or she personally will suffer harm.

32. What Can School Boards Do? Policies: • Implement/amend anti-bullying policies to include cyberbullying • Draft standardized student computer usage agreements which promote positive, respectful online communication behaviour in schools • Revise school codes of conduct to include opportunities for students (perpetrators and victims) to learn from their mistakes • Update policies regularly (at least annually) to ensure that they are consistent with new laws, regulations and court decisions. Education: • Educate students, teachers and parents about bullying and cyber-bullying and the dangers of improper internet use • Inform about legal consequences of cyberbullying • Educate about online safety and privacy protection Source: Pepler, Debra; Milton, Penny. June 14, 2013. Final Report of the External Review of the Halifax Regional School Board’s Support of Rehtaeh Parsons McKay,Wayne. 2012. Report of the Nova Scotia Task Force on Bullying and Cyberbullying , Respectful and Responsible Relationships: There’s No App for That Russo, Charles; Osborne, Allan; Arndt, Kelli Jo, 2012. Cyberbullying and Sexting: Recommendations for School Policy. Education Law Association – ELA Notes – Vol. 47, No 2.

33. What Can School Boards Do? Social Activism: • Create or adopt “digital citizenship” and online safety programs for students aimed at changing attitudes. • Government and school boards are to include young people in advisory roles  • It is recommended that school boards through their individual schools build on existing relationships with their school resource officers / community policing officers by involving them in anti-bullying programs and initiatives at the school levels. Reporting: • Create a clear mechanism for students to report bullying • School boards are to ask (through surveys and other tools) students, staff and parents about the quality of their relationships within the school community Source: Pepler, Debra; Milton, Penny. June 14, 2013. Final Report of the External Review of the Halifax Regional School Board’s Support of Rehtaeh Parsons McKay,Wayne. 2012. Report of the Nova Scotia Task Force on Bullying and Cyberbullying , Respectful and Responsible Relationships: There’s No App for That Russo, Charles; Osborne, Allan; Arndt, Kelli Jo, 2012. Cyberbullying and Sexting: Recommendations for School Policy. Education Law Association – ELA Notes – Vol. 47, No 2.

34. Resources • Define the Line: clarifying the blurred lines between cyberbullying and digital citizenship: www.definetheline.ca • www.bullyfreealberta.ca • www.cyberbullying.org • Respectful and Responsible Relationships: There’s No App for That. The Report of the Nova Scotia Task Force on Bullying and Cyberbullying. A. Wayne MacKay C.M., Q.C.

35. Questions?