Cyberbullying as a Vice with Legal Implications - Research Paper Example

? Law Number Introduction However one may want to describe cyberbullying, cyberbullying remains a vice which has legal implications. With the advent of the Internet toward the end of the 20th century, a phenomenon emerged where, bullies, rapists, fraudsters and mean-spirited individuals have found crevices to hide in, in the cyberspace. Even as the presence of cyberbullies and their operations remain largely covert, the effects of cyberbullying are far-reaching and devastating on the person of the cyberbullying victim. The implication of the act is based on the fact that it is injurious in nature, in that it contravenes the rights, freedoms and wellbeing of the targeted individual. To this effect, cyberbullying may be described as the use of instruments or provisions of information and communication technologies such as cell phones, e-mails, chart rooms, instant messaging and online social forums such as Facebook, WassUp, Skype or Twitter to exact, convey or support harassment, issuance of threats or intimidation of an individual. Some circles in the legal fraternity usually define cyberbullying as the employment of IT-related technologies such as the Internet and a phone or a computer or a computer to harass or harm other people, deliberately, repeatedly and in a hostile manner. Others define cyberbullying as the use of technology to threaten, harass, target or embarrass another person. The latter definition is important in understanding aspects [particularly, the objectives] of cyberbullying. The only flaw in it is the wide qualification of technology. While technology is wide-ranging, cyberbullying is only specific to IT technology. In a closely related wavelength, cyberbullying occurs among young people. In the event that adults are involved, it is more fitting to describe the act of using IT technology to harass, embarrass, threaten or target another individual as cyber-stalking or cyber-harassment. In respect to the foregoing, it is most sound and safer from controversy, to define and describe cyberbullying as the use of IT technology by a child or a teenager to harass, embarrass, threaten or target child or teenager. The Reality of the Threat of Cyberbullying Although majority of the US and the world’s population is convinced about the dangers of cyberbullying, yet there is general ignorance on the magnitude of this threat. The magnitude of the threat at hand is underscored by several programs and activities which the US government has sanctioned in response to the danger of cyberbullying. One of these programs is the Be safe and Sound in School program, which aims at improving the safety and security of the American nation’s schools through the mobilization of parents, elected officials, school administrators, policymakers and students. There is also a federal government-run website which is under the management of the US Department of Health and Human Services, Washington D.C. The website provides resources on cyberbullying and the conventional form of bullying and avails necessary tools, publications and training, as a way of preparing children against cyberbullying and bullying. There is also the New Cyberbullying Resource for Victim Service Providers and the New Cyberbullying Tip Sheet. That the US would go the length to form these agencies as a way of countering cyberbullying and bullying is telling on the prevalence of cyberbullying in America. As if the provisions of cyberbullying above are not enough, statistical provisions from the i-SAFE foundation continue to underscore the prevalence of cyberbullying. According to statistical provisions from i-SAFE, more than half of teenagers and adolescents in the US have been bullied online, while nearly the same number of teenagers and adolescents has at one time participated in cyberbullying. Again, i-SAFE continues that more than 1 in every 3 teenagers and adolescents have encountered online. Again, more than 25% of teenagers and adolescents have encountered or experienced bullying either through the Internet, or their cell phones, or even both of these. The most worrying trend to the statistical provisions above is that more than half of these young people who have been victims and perpetrators of cyberbullying have never informed their parents, when they cyberbullying incidences. Again, according to Hinduja and Patchin (2010), the efforts above which the US has concerted as a way of dealing cyberbullying a coup de grace also underscores not just the widespread nature of cyberbullying, but the extent to which cyberbullying may be destructive. Particularly, the damaging nature of cyberbullying is underscored by its ability to bring about anxiety, depression and even, when unchecked, suicide. The irreparable damage on an individual’s character which cyberbullying subjects one to, also underscores the seriousness of cyberbullying. Once damning content or information has been posted over the Internet, they may never be totally obliterated. Instead, these contents may resurface at far later times to open afresh, the pain of cyberbullying. Implications of Cyberbullying One of the strong points and facets of cyberbullying is the fact that cyberbullying draws its strength from man’s gregarious tendencies and nature. Man’s gregarious tendencies dictate that man congregates either physically or in online social circles. For cyberbullying, this gregarious nature compels children to socialize by texting, emailing, sharing uploads and texts and chatting in social online network sites. The import of this is that when these instruments of IT fall into the hands of a malefactor, then these forums can be used to disseminate embarrassing and inappropriate information about someone else (Gerrish, 2011). Cheng (2012) postulates that there are other implications which subtly and covertly accompany cyberbullying. According to Gilden (2013), for instance, there is a direct correlation between advancement in IT, and the subsequent rise of cyberbullying on one hand, and increasing rates of suicide, on the other. Gilden also demonstrates that cyberbullying serves as a major outlet for bullying, intimidating and harassing representations of cultural heterogeneity. The socio-cultural minorities, racial minorities and those deemed to be sexually deviant [particularly, the lesbian, gays, bisexual and the transgender (LGBT) community may fall within the rubric of the representations of cultural heterogeneity. According to Gilden (2013), since most states have made legislations to criminalize vendetta against the LGBT community as a way of stemming the social stigma which is always leveled at the LGBT community, there are those who have taken to the use of online media to carry out their anti-minority or anti-LGBT onslaughts. Presently, most of the hate speech and war cries against the LGBT community is done on online social networks. Likewise, xenophobic speech and propaganda are almost always sown in online fields, and not in the traditional public space, even among teenage children. While children and teenagers may not have become mature enough to be or remain resolute about their sexual preferences or orientation, victims of cyberbullying who are likely to be attacked with anti-LGBT onslaughts are those who have been adopted by LGBT parents. Children who come from low-income earning families and people of color are also likely to be more prone to xenophobic slur and racially instigated bullying as compared to their Caucasian counterpart in the United States. However, there are cases where cyberbullying has claimed lives among teenagers who enjoy the comfort of social mainstream or dominant culture. One such teenager is Rehtaeh Parsons who hung herself on April 4, 2013 at her home in Canada, Dartmouth. The attempted suicide led Parsons into a coma, before a decision to have life support switched off on her, on 7 April 2013. In Parsons’ case, it is clear that cyberbullying was the principal factor which led to the attempted suicide and subsequent death. Particularly, Parsons had been raped in November 2011 by four teenagers who also captured the rape ordeal in their camera and later deliberately distributed the photos throughout their and Parsons’ school, Cole Harbor District High School. After these incidences, Parsons began receiving unsolicited Facebook and text messages from people who were soliciting sex from her. Parsons was 17 years at the time. According to Williams (2012), however beneficial the advancement and provisions of the IT technology may be, there are ethical and moral challenges which accost their users, particularly, the younger ones. Williams treats sexting and cyberbullying as being related and as the pitfalls of the advancements in IT. Williams sees the problem arising from the advancement and use of IT technology as being centered on an element of disparity in development: while developments in IT technology have been continuously and gradually expansive, legislations have not been equally being developed to address the implications of a fast-developing IT technology. Particularly, Williams propounds the idea that while developments in the field of IT have heightened and catalyzed activities in the cyberspace, the law has relatively remained mute on the need to address certain concerns on the use of cyberspace. Instead, through the provision of the Bill of Rights [such as the freedom and right to free speech], the constitution has almost provided the public with a laissez faire on the use of the cyberspace [with forums being left the power to exercise pseudo-legal discretion in their terms and services of use]. In light of Williams’ argument above, it is not fortuitous and rare that one should encounter vestiges of an irresponsible use of the cyberspace. For instance, it is interesting that one does not need to scour the Internet with great intensity to come across incendiary materials such as How to Kill the US President, and How to Impersonate Someone in Facebook. Williams also continues that while IT advancements have expanded and invigorated activities in the cyberspace, the pressure to accord children with proper parental upbringing has waned. Because of this, children have only known to use the Internet without having proper acquaintance with the implications which come with irresponsible use of the Internet and online social forums. Because of this, the use of Photoshop to intimidate, humiliate and ridicule is commonest among children and adolescents. Difficulties in Tackling Cyberbullying The fundamental nature of cyberbullying is what underscores the difficulty in dealing with cyberbullying. This is because cyberbullying is a practice which is specific to children and teenagers who are underage. The law does not hold an individual as a legal person if that person has not attained the age of legal accountability and consent. The flipside of this development is that even if the state should expedite and concert its efforts to subject teenagers to an age of legal accountability, there still will be no accountability in these teenagers’ younger counterparts. For instance, lowering the age of legal accountability to 16 may not help matters, since those below this age will use their non-legal status to engage in the cyberspace to the maximum. Conversely, lowering the legal age will also open its can of worms since the children who will have been introduced to the legal age will have been deprived of their chance to be children at a relatively younger age. Taking a 16 year old as a legal person may not only be expecting too much from a child, but also a way of depriving a child, the chance to be a child. Secondly, there are those scholars such as Langos (2012) who see cyberbullying as being reinforced by the definition given to it. The moment elements such as intention, repetition, power imbalance and repetition are considered as primary elements of cyberbullying, attention is only brought to traditional face-to-face bullying, while aspects of cyberbullying are ignored. The aspect of repetitiveness for instance negates the fact that cyberbullying in its present form mostly takes the likeness of the antagonist posting material which is injurious to the victim’s personhood publicly. The fact that the online environment is a space not limited to anyone makes the online environment a public domain. It is therefore very preposterous to think that a person who has posted libelous information about his victim in an online environment should be let loose just because he has not done it repetitively. Again, inclusion of an element of intention into the description of cyberbullying further compounds the complex nature of qualifying cyberbullying as a crime. This stance is tantamount to either declaring that ignorance can be a basis for legal defense, or insinuating that nobody should be held legally liable to a crime, simply because he was ignorant of the law. The crux of the matter herein is that, even if some are quick to point at Cheek v. United States, 498 US 192 (1991) and Limbert v. California, 355 US 225 (1957) any user of any online social forum is made to read the terms and conditions of any online social forum and to agree with them, prior to signing up. This means that gnorantia legis neminem excusat holds by all means. Signing up for these online social forums therefore indicate knowledge of, and willingness to adhere by the terms and conditions of the online social networks. Instagram, Facebook, Twitter and MySpace are some of the forums which have these terms and conditions which both prospective and potential clients have to be aware of and adhere to. It will be outrageous for one to send or publish damaging information about another and make ignorance the basis of his defense. The aspect of power imbalance may also be a difficulty in qualifying cyberbullying as one. The notion of power imbalance may not apply in cyberbullying since people believe that the cyberspace allows people more room to engage in criminality and unethical practices. Because of this, some think that they can get at whomsoever they want. For this reason, people of higher social standing, more advanced age-groups, the young and the modest have all fallen victims of cyberbullying. Cases abound of children from regular families using the cyberspace to scandalize their counterparts who hail from celebrity families. In this light, the aspect of power imbalance may apply if this power imbalance is solely brought about by the antagonist having information or data which he may use against his prospective or potential victim by posting it or publishing it in the cyberspace. All these semantic elements used to describe cyberbullying make the description of cyberbullying a tenuous and complicated affair to legally deal with. As long as an act cannot be adequately qualified as a crime, dealing with that act legally becomes impossible. It is also notable that most laws in the world, including the US laws say very little about the legal responsibility of minors. This is in specific relation to the use of the cyberspace. This is a significant setback in the war on cyberbullying, since 40% of participants in cyberspace are accounted for by teenagers and their younger counterparts. This group is largely and remarkably whimsical, undisciplined, flippant and ignorant on the use of the Internet, and the legal implications proceeding therefrom. It is not fortuitous that after the rape, photographing and dissemination of Parsons’ rape photographs, Canadian law enforcers and criminal justice system could not open any legal case against Parsons’ offenders. Another impediment to the struggle against cyberbullying is that it mainly takes place in the cyberspace, and particularly, in specific online social forums such as Facebook. These online social forums have no way of finding out if their potential or prospective users, clients or members are of a legal age, should laws be passed to hold cyberbullies accountable. Again, the same online social networks are bereft of any mechanisms by which it would be determined whether or not, a new entrant understood the terms and conditions of therein. It is possible for an 8 year old to sign up to Facebook and even Google accounts and participate in YouTube video uploads and comments section without even reading the terms and conditions spelt therein. This state of affair is partly responsible for the irresponsible use of online social networks among children and teenagers. In a similar vein, Stephenson (2010) observes that even if the perpetrators of cyberbullying are to be apprehended and brought to justice, in the event that a crime of a serious magnitude has materialized [as was the case of Parsons], it becomes extremely difficult to get the actual identity of the perpetrator. Without the identity of the perpetrator of a crime, there cannot be an apprehension of the criminal or suspect. The difficulty in identifying the cyberbully criminal or suspect is underpinned in the fact that the Internet lacks tools for verifying the identity of the account holder. Online social networks neither require actual legal names of an individual, nor make any efforts to verify that the names an online social network user match his documents. Again, online social network users are also allowed to use pseudonyms instead of real names. The fact that Internet supply is liberalized means that anyone can sign up from any point away from home, particularly in a cybercafe, use an account to exact cyberbullying and disappear. Thus, the liberal nature of online social networks and Internet supply makes it complicated to identify a real user of an online social account, even if law should be changed to bring cyberbullies to legal account. The flipside of the foregoing is that were it not for the liberalization of Internet supply, it would be easy to track down an online social network user by following his IP address. Again, even if online social networks such as Facebook should successfully come up with a system which verifies age and restricts use of the same to the legal age, there may be accusations of ageism. Likewise, restricting the use of these online social networks to true names and identity may be labeled as an act meant at stifling the freedoms and rights which the masses enjoy. Even if these accusations and counteraccusations are to by bypassed, there will still be room to beat the system by renting or sharing an online account. This further complicates the problem of cyberbullying. Measures Which Can Be Applied To Discourage Cyberbullying In respect to the standpoint that Williams (2012) had taken, it is true that the public, especially children, should be educated on the limits of the provisions of the First Amendment. Williams is of the idea that children and members of the public are to be informed that no human right is absolute, since the use of freedom of expression and free speech becomes a criminal offence when these rights are used in a manner that is injurious and/ or infringing on another person’s rights and freedoms. Williams is poignant that this approach is sacrosanct since children and teenagers are heavy participants in the cyberspace and therefore make up 40% of Internet users, yet they cannot be brought to legal account because of their age. Because of this, there is no recourse to teaching children and teenagers on safe and responsible participation in the cyberspace, as a way of fighting cyberbullying. According to Rosario, Calmaestra and Merchan (2008), it is also imperative that the disconnect between children and the older generation is abridged, in order to fight cyberbullying. The crux of the matter herein is that children in the 21st century have become more tech-savvy and have a higher propensity to staying online, compared to children from earlier generations. This means that while 21st century children have a higher penchant for being online or active in the cyberspace, the converse applies to their parents who may limit their use of the Internet to primary functions. As a matter of fact, the national organization, Fight Crime: Invest in Kids in a 2006 study established that 1 in 6 preteens and 1 in 3 teens have at least been victims of cyberbullying. This is because, as the number of children with computers and Internet-enabled mobile phones continue to soar, incidences of cyberbullying are also bound to be rife. With children’s active presence in the cyberspace and little participation of the parent in the cyberspace, chances for parental supervision and guidance remain very low, if at all present. This leaves children very susceptible to cyberbullying. It is only by participating in the Internet that parents can become fully acquainted with the dangers and manifestations of cyberbullying, and be in a position to accord a child with timely help. In regard to the development above, it will be exceedingly helpful of a parent to teach the child what cyberbullying and other cybercrimes entails; how to detect them at their pristine-most stages; and how to respond to them. While on this, the parent or guardian must take caution to be specific so as to train a child detect a harsh, cruel or mean text message, tweet or Facebook response, impersonation, posting of personal information, videos or photographs which are intended to cause hurt or embarrassment to another person. It may also be helpful to train children to detect a fake online social webpage and/ or account which have been created with the chief purpose of bullying or harassing. It is at this instance that parents are also to teach their children on the need to use the Internet and online social networks responsibly and in line with self-respect. There is also a need to develop a tripartite to the problem of cyberbullying, as was seen in the case of the International Stop Cyberbullying Youth Summit which was held in 2013 at the Confederation Center of Arts. The tripartite arm or apparatus for dealing with the problem of cyberbullying is to consist of: children and adolescents, parents and experts. Through this summit which served as an interactive day of breakout sessions, presentations and discussions were made with experts to help stop the harassment of children and teenagers in the cyberspace. Rehtaeh Parsons’ parents were also present. Representatives from Facebook, Microsoft and Google joined the discussion to help students [children and teenagers] know how to stop cyberbullying and help someone who is undergoing cyberbullying. Many agree with the idea that Feinberg and Robey (2009) advance to the effect that there is an important value in fostering parent-teenager and teacher-child relationship, so as to help encourage the sharing of information between the teacher and the child or the parent and the child. It is only in the presence of this healthy relationship that teenagers and adolescents can learn to inform an adult when cyberbullying has occurred. At this juncture, it is extremely helpful to let these children, teenagers, adolescents or students to know that being a victim of cyberbullying or any other form of cybercrime is not their fault and therefore does not warrant any punishment. Holladay (2011) cogently propositions that teenagers, adolescents, children and/ or students should also be trained and encouraged to keep cyberbullying information, chats, prompts or messages as proof of cyberbullying actually having occurred. From this, it will be easier to take an appropriate correctional action. The victim’s parents may confront the parents of the cyberbully with the evidence. Conversely, the cyberbully’s cell phone or Internet services provider and the police may be contacted, especially if the message or chat or mail or prompt is life-threatening or sexually inappropriate in nature. It will also pay to acquaint teenagers and adolescents with online safety measures. Some of these measures may include: the avoidance of sharing online, personal information; keeping the computer the child is accessing to a shared space; keeping password secrecy and strong passwords; and having controlled use of the computer or/ and the cell phone. References Cheng, K. (2012). Cyberbullying. Neuropsychiatrie de l'Enfance et de l'Adolescence, 60 (5), 118 - S119 Feinberg, T. & Robey, N. (2009). Cyberbullying. Education Digest: Essential Readings Condensed for Quick Review, 74 (7), 26 – 31. Gerrish, D. (2011). Cyberbullying. Emotional and Behavioural Difficulties, 16 (2), 233 – 234. Gilden, A. (2013). “Cyberbullying and the Innocence Narrative.” Harvard Civil Rights-Civil Liberties Law Review, 48 (2), 357. Hinduja, S. & Patchin, J. W. (2010). Bullying, Cyberbullying and Suicide. Archives of suicide research: official journal of the International Academy for Suicide Research, 14 (3), 206 – 221. Holladay, J. (2011). Cyberbullying. Education Digest: Essential Readings Condensed for Quick Review, 76 (5), 4 – 9. Langos, C. (2012). “Cyberbullying: The Challenge to Define.” Cyberpsychology, Behavior and Social Networking, 15 (6), 285 – 289. Rosario, O., Calmaestra, J. & Merchan, J. M. (2008). Cyberbullying. International Journal of Psychology and Psychological Therapy, 8 (2), 183. Stephenson, J. (2010). Probing Cyberbullying. JAMA: The Journal of the American Medical Association, 304 (5), 513. Williams, J. L. (2012). “Teens, Sexts & Cyberspace: The Constitutional Implications of Current Sexting & Cyberbullying Laws.” The William and Mary Bill of Rights Journal, 20 (3), 1017. Read More