Online Censorship Through Selective Demonetization

Online Censorship Through Selective Demonetization

Online Censorship Through Selective Demonetization

By Robert H. Porter

YouTube recently made the decision to clarify its policy concerning the “advertiser friendliness” of content creator’s videos, which has led to an apparent increase in the demonetization of online content. Demonitization is essentially the reduction of content creators’ ability to collect ad-based revenue from their content. While this demonetization has been occurring since 2012, it was only recently that YouTube changed its communication to its content creators. Thus, while this policy of demonetization of “non-advertiser friendly” content has been going on for years – seemingly without the knowledge of a large proportion of content creators – this is the first that many have heard about this “new” policy.

So what does “advertiser friendliness” actually mean? According to YouTube’s policy, the content uploader must ensure that the video content, metadata, and thumbnail image contain “little to no inappropriate or mature content.” Furthermore, material that is not considered appropriate for advertising includes: “controversial or sensitive subjects and events, including subjects related to war, political conflicts, natural disasters, and tragedies, even if graphic imagery is not shown.

There are a large number of content creators on YouTube that pick up on current events, news stories, and political developments, all of which can be deemed “controversial or sensitive” depending on one’s perspective. One of the main joys of YouTube is that it originally served as a place when one could upload pretty much anything and share it with the world (provided it broke no laws such as copyright legislation). With increasing censorship, this freedom is slowly being eroded.

Essentially, YouTube is simply adjusting and enforcing its own terms of service, which it is perfectly entitled to do, and while the recent clarification of if its policy has spawned protest hashtags such as #YouTubeisDead, there is little doubt that YouTube will not be overly harmed by this online snafu. However, the real issue seems to be that the enforcement of this demonetization policy is incredibly uneven. While independent content creators seem to be targeted, large corporations such as CNN do not seem to be hit by the same demonetization policy in regards to what content is permitted on monetized videos.

From where I sit, however, there remains the glaring (un)intentional sending of a rather pointed message: this looks like blatant censorship of smaller, independent content creators. Demonetizing an individual’s content equates to censorship. Full stop. Furthermore, demonetizing individuals while allowing large corporations to continue unheeded reeks of the de-democratization of the online sphere. Again, the (un)intentional message is disturbing: “If we don’t like your message, we can shut you down.”

Another major problem is that, whatever algorithm is being used by YouTube, it seems to be both incredibly broad as well as oddly specific. As CBC reported, videos demonstrating educational science experiments such as “Menthos Coke Explosions” have been demonetized under the policy, as have several videos on suicide prevention because “suicide” is one of YouTube’s “problematic” tags. There is no room for nuance, and, as a result, a significant number of creators who are producing content designed for educational or beneficial purposes are at risk of being swept under YouTube’s digital rug.

Of course, the number of content creators who rely solely on advertising revenue from their content on YouTube is incredibly small. However, many users are only able to continue to produce content due to the advertising revenue that they receive based on the number of their viewers and subscribers. When a company has little or no competition, however, it is much easier to yield to the demands of other large corporations (and funders) rather than the “little guys” that produce a vast range of your content.

So why does this matter? Why should we be concerned with whether a massive online corporation limits the perspectives of its users through the reduction of advertising revenues of video producers? It matters because this issue touches on the prevailing use of big data and algorithms to monitor and collect information concerning youth and their online lives.

The amount of data that is funnelled through big data algorithms is increasingly worrying, especially since it tends to trap individuals in discriminatory categories. In this instance, the algorithms are contributing towards the censorship of ideas and opinions online, but algorithms like this could very well be used to reduce individuals to data-figures in discriminatory data-driven systems.

Complications such as this are bound to arise when the public sphere, personal communication, and social media are dragged into the corporate models of commercialization. The big question that remains is what kind of responses will we see in response to the ever-increasingly algorithm-driven world?

Inequality in Gaming

Inequality in Gaming

Inequality in Gaming

By Trevor Milford (eQuality Project Student)

On 15 September, professional gamer and game designer Stephanie Harvey came to the University of Ottawa to discuss her experiences in the gaming industry. As a doctoral candidate working on issues involving discrimination in gaming, I was particularly interested to hear Stephanie’s insights on how inequality and virtual harm impacted her livelihood. I’d heard about the event through a promotional article entitled “Ending cyberbullying is everyone’s responsibility” and was familiar with some of Stephanie’s work on spreading awareness about gaming-related gender inequality. Perhaps most notably, she is known for founding MissCliks, an initiative committed to ensuring that “people of all genders can participate in geek and gamer culture without fear of prejudice or mistreatment”.

I was excited to hear Stephanie’s insights, but perhaps even more excited – as I always am – that issues of inequality in gaming were being given a public platform. Many of us recall the relatively recent GamerGate controversy that brought gaming-related discrimination to the forefront of public consciousness. For social scientists like myself, GamerGate can be used as an inroad to bring discussions about inequality in gaming not only to academia, but also to the general public. I was eager for Stephanie to talk about her experiences with misogyny in gaming, both in hopes of applying what she said to my own research on GamerGate and because of the sheer importance of talking about the reality of these problems. Talking about discrimination in the abstract can be a tough sell – it’s an honour when people are willing to talk about their experiences and bring research on discrimination to life, making what we do as academics more “real” and impactful. Having these discussions at postsecondary institutions is particularly timely and important since cultures of misogyny are deeply entrenched on university campuses locally, across Canada, and across broader North America.

Talks like Stephanie’s are a great way to combat discrimination in gaming while illustrating its harms and impacts through a topic that’s engaging for audiences, and for students specifically. While roughly the same percentage of men and women play games, about 3/4 of game developers are male. Females in the gaming industry and industry-related media have received targeted death threats and other threats of violence, have had their personal information publicly “doxxed” by online harassers, and have felt compelled to flee their homes because of online aggression. Although I could continue, in the interest of saving space it suffices to say that it’s difficult to ignore the undercurrents of gender inequality and misogyny run through the gaming industry.

Stephanie shared that misogyny is something she has encountered throughout her career, referring to the gaming industry as a “boys’ club” where women are seen as disruptive to a male-dominated status quo. Women, she offered, are commonly seen by professional gamers and by industry insiders as “creating chaos” by threatening gaming’s patriarchal foundations. She mentioned that she and women she knew had witnessed a range of misogynistic beliefs both from coworkers and from fellow gamers. These include beliefs that women create more job competition, distract men, are less skilled than male players and “bring down” quality of gameplay, and are fundamentally changing gaming itself in a way that is inherently negative – namely to be more inclusive.

Stephanie also linked misogyny in video gaming to the fact that most gaming happens online and that the Internet can enable anonymity (despite some studies suggesting that anonymity actually makes online comments less extreme or contrarian). She described many harassers in games as “keyboard warriors” or “trolls” who wouldn’t behave similarly offline, paralleling harassment in gaming with harassment in online chat rooms, discussion forums or anonymous social networks. The anonymous nature of virtual harassment can make these behaviours seem less real even though they have been shown to have very real impacts for victims. This association means that misogyny both online and in video gaming can come to be seen as unserious, unproblematic, endearing, or funny, ultimately silencing serious discussion about the harms of virtual gender discrimination.

I was anxious to hear more insights and to tease apart a couple of Stephanie’s claims that I found problematic – for instance, that “men are genetically better” at certain types of games, that “men are more social”, and that “in social life men are really good at competition” (is the implication that women are not?). However, about ten minutes after she began to speak about women in gaming, Stephanie’s allotted discussion time reached its end. Since audience questions had been interspersed with Stephanie’s talk, much of it until this point had been directed by queries from the audience. It wasn’t lost on me that save for the two questions that Stephanie had time to answer after starting to speak specifically about women and gaming, all but one audience question had been from male audience members. None involved gender, or even discrimination more generally (except for one question posed by a male in the front row – “How do you feel about female gamers using their bodies to make a living?” – posed as if this were something problematic and shameful. To be fair, Stephanie’s answer was “I’m all for it”). There was no critical discussion about GamerGate, very limited discussion about harassment or bullying, and little discussion about how the inequalities for which Stephanie works to raise awareness could be resisted or mitigated.

I was taken aback that no one really seemed to care about discrimination or inclusivity – not necessarily in a radical feminist “let’s overhaul the game industry!” sort of way, but even just in a way that hinted they were willing to discuss these issues at all. Instead, the audience largely seemed focused on issues such as how to make money off gaming professionally, what made X game such a great game, or how to secure prestigious positions as game developers. I was surprised that there was evidently limited interest in more critical lines of inquiry than the venture capitalist potentials of gaming. Of even more concern, it seemed lost upon the audience that they were enacting patriarchy by dominating a discussion that had been advertised (and even reported on afterwards) as about (gender) discrimination in gaming to solicit get-rich-quick tips. For me, this illustrated a key problem: patriarchy is normalized. And because it’s normalized, we can fail to recognize it, fail to recognize the harms it creates, and fail to recognize when we perpetuate it. This is true whether our terms of reference are the gaming industry, a university campus, or society in a more general sense. So, readers, I implore you: please help to de-normalize it in whatever way you can. Maybe by making a game about it. …I’ve heard you can get rich quick.

 

Talking Not Spying

Talking Not Spying

Talking Not Spying

By Jolene Hansell (eQuality Project Student)[1]

GoGuardian is a program installed in about 3 million school-owned computers. This program has the ability to monitor a students web-browsing and searches even when students are at home in the evenings or on weekends. The program automatically flags certain search terms, including those related to suicide. The idea is that when a student searches about suicide, the computer flags this search for the school’s IT director who can then call up the student’s browsing history to get a more detailed picture of what the student is going through and get the student assistance if needed.

Sounds like a great way to prevent suicide, right? But the situation may be more complicated than it first appears.

My main problem with this model is that it perpetuates the stereotype that there is something stigmatizing about mental illness. The student, who may not feel like they can talk about their struggle with their own mental health with anyone, is using the anonymity of the Internet to get information. When the school invades the student’s privacy to get access to their online browsing history, they perpetuate the societal notion that there is something shameful about the way this student is feeling/what the student is searching. This vicious circle continues to push mental health issues into the dark corner of things we are not prepared to talk about in our society.

Suicide is the second leading cause of youth death. It is one of the biggest issues facing our world today. I have no doubt that the intentions of GoGuardian are good—trying to reach out and help individuals struggling with their mental health before they become a suicide statistic is a noble objective. But further stigmatizing mental illness makes the problem worse, not better.

The best tool we have in the fight against suicide is conversation. Every day we are bombarded with things we need to do for our physical health—eat right, exercise, get a good night’s sleep—but we are less apt to discuss the things we do for our mental health.

Mental health needs to be part of our daily conversations; it needs to be okay to say, “I’m not okay”. Rather than employing technologies that invade a student’s privacy, schools should be incorporating conversations about mental health into their daily classes. By facilitating this conversation, schools will create an environment where individuals who are struggling with their mental health will feel comfortable to speak up and ask for help, and remove the need for monitoring technology altogether.

[1] Jolene Hansell is Vice President of the Paul Hansell Foundation. The Foundation supports programs aimed at promoting the emotional and well-being of youth and works to include the mental health conversation in our daily lives.

 

“Title IX” Used to Attack Vulnerable Students and Professors

“Title IX” Used to Attack Vulnerable Students and Professors

Title IX Used to Attack Vulnerable Students and Professors

By Sarah Thuswaldner (eQuality Project Student)

Laws like Title IX in the United States are meant to protect students from sexual assault and discrimination – but that didn’t stop an alleged sexual assailant from trying to claim that same protection in a lawsuit against his university.

Columbia University art student Emma Sulkowicz drew international headlines with her senior thesis: “Mattress Performance (Carry that Weight).” She carried a twin-size mattress everywhere she went on the Manhattan campus, saying it was a symbol of her rape and the university’s failure to respond to it.

The alleged assault took place in 2012 – contact that the alleged assailant, German international student Paul Nungesser, claims was consensual and Sulkowitz insists was not. In 2013, a university inquiry found Nungesser “not responsible,” and in 2014, Sulkowitz began carrying the mattress and speaking openly about her experience.

Nungesser complained that Sulkowitz had branded him as a “serial rapist” and sued the school, but on March 12, a judge confirmed that “rapist” was not a gendered term, and Nungesser had not experienced sex-based discrimination within the meaning of Title IX, nor had he been deprived of education as a result of the art project.

While Nungesser’s lawsuit has been dismissed, the court gave him the option to refile an amended claim. Further, the fact that a Title IX suit was even open to the possibility of use by an alleged sexual assailant speaks to a systemic problem in the application of a law meant to protect students from sexual misconduct and discrimination.

In fact, the American Association of University Professors (AAUP) released a report on March 23 that claims Title IX has prompted universities to take steps to reduce federal investigations – but not to deal with sexual violence and harassment. It suggests that universities dodge liability, without actually making campuses safer.

Schools have paid more attention to sexual violence and harassment on campus in recent years, but that hasn’t necessarily translated into safer environments. There are currently over 200 Title IX federal investigations taking place on university and college campuses, and AAUP alleges that schools’ efforts to avoid federal attention and internal lawsuits have actually made conditions worse for students seeking protection from harassment and violence. The report states that schools have focused on policy reform rather than education and culture change, which would be more likely to prevent harassment and assaults in the first place.

The AAUP also states that a “hostile environment” as set out in Title IX is being treated too broadly, and speech that students find hurtful or offensive can still be protected by academic freedom.

Sulkowicz herself expressed her shock that her art project, which she characterized as part of her healing process, was interpreted by Nungesser as “bullying”.

The AAUP claims (check out the full report here) that too broad an interpretation of Title IX claims can open the door for the law to be used to attack those it was initially designed to protect. For example, it has been used as an excuse to sanction professors who discuss sex and sexuality in their classes or their writing.

Rather than the interpretation of laws like Title IX, perhaps the broader issue is empowered groups’ attempts to use and misuse legal provisions intended to protect more vulnerable groups in ways that are contrary to the foundational principle of equality underlying the laws in question.

A Commentary on Comment Sections

A Commentary on Comment Sections

A Commentary on Comment Sections

By Robert H. Porter

The seemingly ubiquitous ‘Comment Section’ is generally regarded as a place that Internet users should simply avoid. The unfortunate reaction by a large proportion of the online population is along the lines of: ‘abandon all hope those that enter here.’

While the reputation of comment sections is generally negative, how bad are they in practice?

Comment sections can be places to share interesting and invigorating discussion, but are typically marred by insults, trolling, and needless vitriol. The usual intolerance on display includes sexism, racism, homophobia, transphobia, ableism, and general intolerance and ignorance – and that is only scratching the surface.

The Guardian recently published the results of a study of the 70 million comments left on its website since 2006. The study’s findings were not entirely surprising; the ten most abused Guardian writers included eight women and two racialized men. Out of the eight female writers, four were white, four were racialized women, and two identified as gay. Of the two men, one identified as gay.

Perhaps not surprisingly, the ten least abused writers on the Guardian website were all men. However, in addition to the gender bias in terms of the number of abusive comments, the Guardian study found that articles written by women – no matter the subject – generate more abuse through the comment section than those written by men.

Perhaps the most interesting outcome of this study is that is raises – with quantifiable data – the main issues concerning abuse garnered through public discourse online. The Guardian provides a behind-the-scenes-look at the methods of comment moderation – there is even a quiz section that allows the reader to compare their moderation decisions with those of the Guardian’s moderators.

In any discussion regarding abusive content in comment sections, issues related to moderation, or outright closing of comment sections are raised, but the existence of these sections is not the real issue. The real issue is how the air of infallible anonymity seems to encourage this kind of exchange, putting into sharp relief systemic discriminatory prejudices. While it is tempting to fall into a ‘never read the comments’ approach, or simply to shut down comment sections altogether (which is what the CBC has elected to do), neither approach is the answer. The Internet is unlikely to become a safer, less confrontational and threatening place until a much-needed fundamental shift toward equality is achieved. Educational and human rights-based approaches emphasizing respect for diversity and inclusion are necessary steps on the path to long-term social transformation.

On another level, ‘flame wars’ that occur throughout comment sections can appear to be absurd. One series of YouTube ‘flame wars’ re-enacted by distinguished British actors is at once a hilarious examination of the absurdity of some of these comment threads, but also a horrifying display of what some people will blatantly say to another human being, seemingly without care or thought.

The challenge presented to all of us Internet users is not only to build a more respectful and healthy Internet, but also to try to build a more respectful and healthy society. It will be a huge challenge, and will not be easy, but striving for equality – offline as well as online – is worth the effort.

Special Lecture

Special Lecture

Cyberviolence: Interrogating ‘Empowerment’ & ‘Safety’

By Jane Bailey (eQuality Project Co-Leader)

While we tend to hear a lot about “cyberbullying”, we much less often hear the term cyberviolence. What is the difference? Why is it meaningful?

Join us for a panel discussion about cyberviolence, it’s implications for girls’ and women’s equality and some important initiatives for addressing it. Among other things, panelists will aim to unpack some of the issues around what it means to “empower” girls and young women in online spaces, as well as the implications of the term “safety”, which is often used in this context.

When: Wednesday March 30, 2016
Time: 11:30am to 1pm
Location: FTX 351 (University of Ottawa)

Speakers:

Raine Lillefeldt, YWCA Canada
Dillion Black, OCTEVAW
Val Steeves and Jane Bailey, eQuality Project

The panel will deal with question such as:

  • The importance of our choice of language: why “cyberviolence” and not “cyberbullying”?
  • What does empowerment mean in the context of cyberviolence?
  • How are organizations working to combat the psychological distress caused by cyberviolence?
  • What is meant by “safety” online and how do the online experiences of women and girls affect our understanding of safety?
  • What tools are available to combat cyberviolence?

In the meantime, check out these great reports on the subject:
Creating a Safer Digital World for Young Women, by YWCA
Cyberviolence against Women and Girls, by OCTEVAW

A podcast of the panel discussion is now available to download here.

Interrogating_Empowerment_and_Safety_Poster

She May Look Different, But The Story Is Still The Same

She May Look Different, But The Story Is Still The Same

She May Look Different, But The Story Is Still The Same

By Jolene Hansell (eQuality Project Student)

Barbie has undergone a makeover. In the past 50+ years, Barbie has had 150 careers, 50 nationalities, 40 pets, countless luxury vehicles, and thousands of makeovers, but none compare to this.

This month, Mattel unveiled not just one, but 28 new, unique Barbie dolls. Barbie now has 24 hairstyles (including an afro, curly hair, and long blue hair), 7 different skin tones, 22 eye colours, 3 new body shapes (tall, curvy, and petite), and Barbie’s feet can now wear both trainers and heels.

New_Barbie-Blog-Image

The original Barbie—with her tiny waist, stick thin legs, and petite frame—has been heavily criticized for promoting an unhealthy image. Researchers at Finland’s University Center Hospital even pointed out that with a 36-inch chest and 18-inch waist, Barbie would not have the 17% body fat needed to menstruate!

Barbie is meant to represent a woman’s right to choose her own destiny. The philosophy behind Barbie is a girl can be anything she wants to be. And with 28 different versions, more and more girls can find a Barbie that represents themselves. One Nigerian girl has even created Hijarbie—Barbie modeling ‘mini hijab fashion’.

Hijarbie-Blog-Image

If you think Barbie’s diversification is cause for celebration, then you are missing the elephant in the room. Barbie holds a secret message, found in her high fashion clothing, flawlessly make-up, and perfectly styled hair: Girls can be anything they want to be as long as they adhere to feminine stereotypes.

An image is worth a thousand words, and Barbie’s appearance perpetuates stereotypical ideas of femininity. This has not been mitigated by the ambitious careers Barbie has held over the years—doctor, scientist, or computer engineer. Researchers at Oregon State University and the University of California have concluded that girls who play with Barbie are far less ambitions, and see far fewer career opportunities open to them, than girls who played with Ms. Potato Head. The results were the same regardless of whether the girl was playing with Doctor Barbie or Fashion Barbie.

Simply put, something about Barbie screams stereotypical ideas of what it means to be a woman. Barbie prompts girls to think about body and fashion, not skills and aspirations. And with 28 new models, this stereotype is going to resonate with 28x more girls.

The Great Dress Code Debate

The Great Dress Code Debate

The Great Dress Code Debate

By Sarah Thuswaldner (eQuality Project Student)

There might be no high school complaint more cliché than dress codes. Everyone remembers – or still struggles with – teachers telling them to fix their skirts, cover their shoulders, or even go home to change into something else.

Ottawa Carleton Catholic School Board policy says dress codes can be “as general as addressing the wearing of ball caps and the length of skirts and shorts.”

Keen observers will note that two of those three items only affect women.

At my high school, the girls-only conflicts with the dress code were a matter of course. Typically, tops had to have straps that were three fingers wide. Shorts and skirts were measured by holding one’s arms straight down, and anything that didn’t reach fingertip-length was too short. Aside from the obvious fact that finger and arm size are not standardized, these were not easy requirements to meet.

If anyone thinks it’s a simple matter of buying new clothes, I gladly invite them to try it. Generally, clothing stores don’t sell long shorts or thick-strapped tank tops. They sell what’s fashionable, and for hot weather that means bare shoulders. At a glance, roughly 10% of tank tops sold by American Eagle, the Gap, and Bluenotes would be considered “school-appropriate.”

High school girls, therefore, live in a culture that sells them very specific clothing, and then shames them for wearing it.

My class found workarounds: we tied sweaters around our waists, strategically wore our hair down to conceal our tank top straps, and covered up with cardigans if all else failed. We did not enjoy it. (I also invite any naysayers to spend an hour in an un-air conditioned basement with twenty sweaty classmates in the middle of June, and see how they like wearing a cardigan.)

Like clockwork every summer, students begin to question and protest their dress codes. Last May, Etobicoke School of the Arts was the site of “Crop Top Day.” Female students wore crop tops en masse to defy the rule forbidding them. The principal, while tolerant of this one day of protest, posted on the school site that while students felt “dress codes sexualize[d] students … the school is a professional work-space.” There was no mention of whether changes were made to the policy.

Students also take umbrage with the way dress codes restrict gender expression. In February, students at Buchanan High School in California gender-swapped their wardrobes to highlight the dress codes’ discrimination. Forbidden items include “exotic clothing” and tops with straps of less than two inches’ width, as well as men with long hair or earrings. The school website currently makes no mention of whether the policy will be reviewed.

Project Slut, an initiative started by Toronto students Kerin Bathel-John, Erin Dixon, and Andy Villaneuva, aims to get rid of student dress codes altogether. The campaign seeks to combat slut shaming and sexualized bullying in schools by raising awareness and advocating for students’ right to dress how they like.

The perennial dress code debate shows no signs of slowing down – and every year, it appears to inspire more students into activism for gender equality.

“Security and Privacy in the World-Sized Web” Lecture on February 17

“Security and Privacy in the World-Sized Web” Lecture on February 17

 

The Deirdre G. Martin Memorial Lecture on Privacy Law presents “Security and Privacy in the World-Sized Web” featuring keynote speaker Bruce Schneier, an internationally renowned security technologist and author.

Wednesday, February 17, 2016, 4:30 – 6:00 p.m.

University of Ottawa
Norton Rose Fulbright Canada Classroom, FTX 302
Centre for Law, Technology and Society

We thank our generous supporters: The Canadian Bar Association, Fasken Martineau

A reception will follow in the Tsampalieros Atrium, 3rd floor

For more information, contact techlaw@uottawa.ca

R. v. Jarvis: Cyberviolence against women – can criminal law respond?

R. v. Jarvis: Cyberviolence against women – can criminal law respond?

R. v. Jarvis: Cyberviolence against women – can criminal law respond?

By Carissima Mathen and Jane Bailey

In 2011, Ryan Jarvis, a London Ontario high school teacher, used a pen camera to surreptitiously record brief videos of students engaged in various activities around the school without their permission.  After reports from another teacher, the school principal personally witnessed Jarvis recording two female students, and demanded that he turn over the camera.  Police analysis of the device revealed 17 active videos, 2 videos which had been deleted but subsequently recovered and other videos that were not recoverable.  Of the 30 individuals depicted in the videos, 27 were female students; five of the images focused specifically on their breasts.  Some days later, police searched Jarvis’ home and found that most of the files on a hard drive located in Jarvis’ room had been placed there after the pen camera was seized.

Jarvis was charged with one count of voyeurism under s. 162(1) of the Criminal Code.  A trial was conducted on the basis of an agreed statement of facts, with no live witnesses.  In November 2015, despite describing Jarvis’ behaviour as “morally repugnant and professionally objectionable”, the trial judge, Goodman J., acquitted him.   The acquittal has attracted strong criticism from one of the young women who was recorded, as well as from the London Sexual Assault Centre and Western University’s Centre of Research and Education on Violence Against Women and Children.

R. v. Jarvis joins a long list of cases that raise serious questions about the ability of the criminal law to meaningfully address sexual offences against women. To be sure, we were heartened by the trial judge’s carefully reasoned conclusion that the privacy rights of the students targeted had been violated despite the fact that the photographs were taken in a public place. Goodman J. correctly recognized the fundamental difference between moving through a public space like a school (regardless of whether the school employs stationary surveillance cameras) and being singled out for surreptitious recordings by a trusted authority figure.  Nonetheless, he interpreted the voyeurism offence unduly narrowly.  Furthermore, even if his legal interpretation was correct, his treatment of the evidence was very concerning.

What is the crime of voyeurism about?

Section 162(1) defines voyeurism as secretly observing or recording someone in circumstances that give rise to a reasonable expectation of privacy where (a) the person is in a place (such as her home) where she might reasonably be nude, have exposed genitals, or be engaged in sex; (b) the person is actually in one of those three states; or (c) the observation or recording is done “for a sexual purpose.”

Because the secret recordings in this case were of clothed young women engaged in school activities, the Crown had to prove that the recordings were made “for a sexual purpose.”  Goodman J. was not convinced of this beyond a reasonable doubt.

In analysing that conclusion it is essential, first, to note the gravamen of the voyeurism offence – what it is intended to punish, and the values that it protects.  In our view, voyeurism protects both personal privacy and a person’s right to control the exposure and use of their bodies by others.  Section 162 is, thus, an important safeguard for sexual integrity, and a way to punish wrongful objectification.

Problems with the judge’s analysis

Turning next to the interpretative issue, it is important to understand the term “for a sexual purpose” and, in particular, “purpose”.  In criminal law, “purpose” can describe more than one state of mind. It can either describe a person’s bare intention to do something, or her ulterior reason for doing it. Most criminal laws require proof only of bare intention, and “purpose” is understood in this sense (“I did it on purpose”).   Less frequently, the term may require proof of the accused’s ulterior reason (“I did the act to achieve a particular purpose”).  This latter understanding is sometimes called “specific intent”.  (Aside from mental states, “purpose” can also denote a characteristic of somethingOne could, for example, use the words “for a purpose dangerous to the public” to describe an explosive device.)

The trial judge quite properly considered other offences that use the term “for a sexual purpose”, in particular, sexual interference, invitation to sexual touching, and child pornography.  But his treatment of them was inadequate.

First, Goodman J. accepted defence counsel’s argument that voyeurism is analogous to the offences of sexual interference with, or sexual exploitation of, a young person.  Because those offences have been held to require proof of specific intent, he found, specific intent should also be required before convicting someone of voyeurism under section 162 (1) (c).

Goodman J.’s analysis failed to properly consider two points.  First, sexual interference and sexual exploitation are types of assault. Specifically, they target wrongful sexual touching between adults and young persons.  In order to avoid catching otherwise innocent contact between an adult and young person, the offences require proof of a particular, sexual mindset. In contrast, in order to convict someone of voyeurism, the Crown must first prove that the accused’s behaviour was both surreptitious and an invasion of a reasonable expectation of privacy.  Thus, even without proof of a specific sexual purpose, the accused’s actions are difficult to characterize as innocent or benign.   In our view, this lessens the need to interpret the words “for a sexual purpose” in the crime of voyeurism in the same way.

Second, the trial judge failed to properly consider child pornography.  Though he did mention the offence, Goodman J. did not appreciate its utility in interpreting voyeurism.  This was unfortunate, because child pornography appears to be far more closely aligned with voyeurism than either sexual interference or exploitation of young persons.  Like voyeurism, child pornography is concerned with a type of wrongful exploitation, and, like voyeurism, it is not dependent upon physical contact between the accused and the victim.  The structure of child pornography is also similar to voyeurism in that it contains multiple definitions of the proscribed materials.  In particular, for audio-visual pornography, the law includes materials that depict (a) a young person engaged in explicit sexual activity or (b) the genital organs or anal area of a young person as a dominant characteristic and for a sexual purpose.

In the first decision interpreting the offence of child pornography, R. v. Sharpe, the Supreme Court of Canada did not find the words “for a sexual purpose” to require proof of specific intent. Rather, it treated the words as a characteristic of the materials.  “For a sexual purpose”, the Court said, should be interpreted as “reasonably perceived as intended to cause sexual stimulation to some viewers.”  The Court thought this both necessary, and sufficient, to prevent the law from catching otherwise innocent depictions, such as family photos of children in a bath.

Goodman J. cited the Sharpe decision, but not its clear implication that the words “for a sexual purpose” did not require proof of specific intent.  While he appeared to accept that one can determine sexual purpose from the surrounding context, he ultimately focussed on whether Jarvis himself had had a specific, sexual intent when he made the recordings.  Because Jarvis did not testify, the trial judge said, inferences had to be drawn from circumstantial rather than direct evidence.

In concluding that the words “for a sexual purpose” require proof of specific intent, then, the judge interpreted voyeurism too narrowly. It is true that voyeurism uses the term “the recording is done for a sexual purpose” which could imply that the words refer to an accompanying state of mind.  But we think this is inconsistent with the underlying objective of the offence.   Certainly, section 162(1)(c) requires that the circumstances have a sexual context, and this can be satisfied by proof of a specific sexual mindset.  But, as with the offence of child pornography, a recording or observation should be eligible to be characterized as “sexual” without such proof. (Otherwise, it seems that many voyeurism prosecutions will fail so long as the accused declines to testify.)  A better interpretation of the “sexual purpose” element in voyeurism would look to the overall context to determine whether, in an objective sense, the activity entailed the sexual objectification of the victim.

Even if one were to accept the trial judge’s finding that the term “for a sexual purpose” requires proof of specific intent, his application of that standard to the facts was very concerning.  Goodman J. found that Jarvis could only be convicted if a sexual purpose was “the only reasonable conclusion” to be drawn from that evidence.  While Goodman J. found it was “most likely” that Jarvis had recorded images of these young women’s breasts for a sexual purpose, the judge thought that other inferences were possible (although he did not suggest any).  Based on that possibility, Goodman J. found, Jarvis was entitled to an acquittal.

Goodman J.’s conclusion is extremely problematic. Most of the surreptitiously-taken photographs focused on young women students, and several of the photographs fixated specifically on their breasts.  In such circumstances we find it mystifying to suggest, let alone form a reasonable doubt, that the accused might have had a non-sexual purpose in making those recordings.  The Crown properly bears the heavy burden of proving each element of the offence beyond a reasonable doubt.  It does not bear the impossible burden of disproving fanciful theories that rely on speculation about the inner workings of the accused’s mind.  “Proof beyond a reasonable doubt” does not extend that far.

Jarvis is a highly problematic decision. At a time of increasing recognition of how cyber-violence undermines the equality rights of women and girls, the case is a strong candidate for correction and clarification by a higher court.  Without such correction and clarification, decisions like this simply reaffirm the viewpoint that criminal law has no capacity to play a role in a broader strategy to end sexual violence against women and girls.  Accepting that viewpoint lets law and legal institutions off the hook far too easily.  Women and girls have a right to expect more.