Legal Briefs: What Are Cyberbullying & Cyberviolence?
Bullying and Cyberbullying
Swedish researcher Dan Olweus coined the term “bullying” to describe a kind of conflict between young people which has three elements. By his classic definition, bullying involves (i) repeated acts, of (ii) intentional aggression, (iii) in a relationship where there is a power imbalance that makes it “difficult for the student being bullied to defend himself or herself.” Others have suggested that bullying can take a variety of forms, including proactive or reactive aggression and bias-based attacks (such as attacks based on racist, sexist, or homophobic prejudices). Bullying carried out through electronic means is commonly referred to as “cyberbullying.”
Two main issues have arisen in discussions around “cyberbullying” and its definition. The first is whether the term should be applied to behaviours between adults, or reserved for situations involving young people. The second is whether or not the the term should be applied to behaviours that involve already-recognized crimes and human rights violations (such as hate propagation on prohibited grounds, criminal harassment, and threats). With respect to the first of these issues, the Center for Disease Control in the United States recently suggested a “cyberbullying” definition that confines the term to behaviours between young people and excludes behaviours between siblings and current dating partners. With respect to second, using the term “cyberbullying” to describe violent and discriminatory harassing behaviours carried out through technology risks obfuscating and/or minimizing underlying issues of prejudice and hatred disproportionately experienced by members of equality-seeking groups, including women, members of LGBTQ communities, and racialized people.
The unfortunate effect of such obfuscation may be to lead to “solutions” that only address symptoms of problems, and do not address root causes for discriminatory violence and harassment. For these reasons, those working on the issue of violence against women and girls (VAWG) have encouraged recognizing and properly labeling technologically-facilitated VAWG as a form of violence, rather than airbrushing this reality with the term “cyberbullying.”
Media Reporting and Canadian Task Forces on Bullying
Bullying and cyberbullying have been widely reported in Canadian media in the last several years, especially in relation to teens who have committed suicide after being targeted by these behaviours. A number of formal reviews have been convened in relation to these issues, including the proceedings of the Standing Senate Committee on Human Rights with respect to cyberbullying in 2011, the Nova Scotia Task Force on Bullying and Cyberbullying that reported in 2012, and the Coordinating Committee of Senior Officials, Cybercrime Working Group that reported in 2013. All three of these reports emphasized the importance of multi-pronged approaches, rather than simply focusing on criminal law responses. In particular, the Senate Standing Committee and the Nova Scotia Task Force endorsed proactive, human rights-based, educational responses designed to help build healthy respect for diversity, civility, and responsible digital citizenship, while minimizing criminal law responses by reserving them for the most egregious kinds of cases.
Since “cyberbullying” is a broad term that can be applied to a wide variety of behaviours, existing laws can sometimes be used to respond. Nova Scotia is the only jurisdiction in Canada to pass legislation that specifically defined and aimed to address cyberbullying. As discussed below, that legislation was recently struck down as unconstitutional.
Research on Online Hate Propagation and Cyberviolence
Many have written about the propagation of hatred against identifiable groups and their members through digital communications technologies and networks. Much of the existing body of research focuses on organized hate groups such as the Ku Klux Klan and Anti-Semitic Holocaust denial groups. The targeting of individuals on the basis of their identifiability (or perceived identifiability) as a member of an equality-seeking group has generally been a lesser focus of the literature in this area, although it is clear that identity-based prejudices can play an integral role in attacks on individuals.
A related and growing body of work focuses on cyberviolence, often examining the consequences for equality-seeking groups such as women and girls. This research draws attention to international definitions of violence against women and girls (VAWG) that incorporate physical, sexual, and psychological violence, and include sexual harassment. It also recognizes how using generic terms such as “cyberbullying” can minimize or create confusion about how best to meaningfully respond to conduct that is grounded in discriminatory prejudices, and which can have devastating effects on members of equality-seeking groups. In the context of VAWG, for example, digital communications tools can play a significant role in perpetuation and escalation of domestic violence and conflict.
 Dan Olweus, The Olweus Bullying Questionnaire (Centre City, MN: Hazeldean, 2007) at 2.
 See e.g. Nathaniel Levy et al., “Bullying in a Networked Era: A Literature Review” (September 2012) Berkman Center Research Publication No 2012-17 at 9, online: <www.cyber.law.harvard.edu/publications/2012 kbw_bulling_in_a_networked_era>.
 See Bill Belsey, “Cyberbullying: An Emerging Threat to the ‘Always On’ Generation” (undated), cyberbullying.ca, online: <www.cyberbullying.ca>.
 Centers for Disease Control and Prevention, “Youth Bullying: What Does the Research Say?” (12 July 2016), online: <www.cdc.gov/violenceprevention/youthviolence/bullyingresearch/index.html>.
 See generally West Coast LEAF, “#Cybermisogyny: Using and strengthening Canadian legal responses to gendered hate and harassment online” (June 2014) at 7, online: <www.westcoastleaf.org/wp-content/uploads/2014/10/2014-REPORT-CyberMisogyny.pdf> [LEAF #Cybermisogyny Report].
 See Jane Bailey, “‘Sexualized Online Bullying’ Through an Equality Lens: Missed Opportunity in AB v Bragg?” (2014) 59:3 McGill LJ 709 at 737 [Bailey, “Sexualized Online Bullying”].
 Jordan Fairbairn, “Rape Threats and Revenge Porn: Defining Sexual Violence in the Digital Age” in Jane Bailey & Valerie Steeves, eds, eGirls, eCitizens (Ottawa: Ottawa University Press, 2015) 229 at 230-1 [Fairbairn].
 See e.g. CBC News, “B.C. girl’s suicide foreshadowed by video”, CBC News (11 October 2012), online: <www.cbc.ca/news/canada/british-columbia/b-c-girl-s-suicide-foreshadowed-by-video-1.1217831>; CBC News, “Gay Ottawa teen who killed himself was bullied”, CBC News (18 October 2011), online: <www.cbc.ca/news/canada/ottawa/gay-ottawa-teen-who-killed-himself-was-bullied-1.1009474>; CBC News, “Rape, bullying, led to N.S. teen’s death, says mom”, CBC News (12 April 2013), online: <www.cbc.ca/news/canada/nova-scotia/rape-bullying-led-to-n-s-teen-s-death-says-mom-1.1370780> [CBC News].
 Senate, Standing Committee on Human Rights, Cyberbullying Hurts: Respect for Rights in the Digital Age (December 2012) (Chair: Hon Mobina SB Jaffer), online: <www.parl.gc.ca/Content/SEN/Committee/411/ridr/rep/rep09dec12-e.pdf>.
 Nova Scotia, Task Force on Bullying and Cyberbullying, Respectful and Responsible Relationships: There’s No App for That: The Report of the Nova Scotia Task Force on Bullying and Cyberbullying (29 February 2012) (Chair: A Wayne MacKay), online: <www.nssba.ca/archived-enews/doc_download/58-nova-scotia-task-force-on-bullying-and-cyber-bullying>.
 Coordinating Committee of Senior Officials, Cybercrime Working Group, Report to the Federal/Provincial/Territorial Ministers Responsible for Justice and Public Safety: Cyberbullying and the Non-consensual Distribution of Intimate Images (June 2013), online: <www.publicsafety.gc.ca/lbrr/archives/cnmcs-plcng/cn32485-eng.pdf>.
 See generally Jane Bailey, “Private Regulation and Public Policy: Toward Effective Restriction of Internet Hate Propaganda” (2004) 49 McGill LJ 59-103 (discussing online hate propaganda in the United States and Canada); Jessie Daniels, Cyber-Racism: White Supremacy Online and the New Attack on Civil Rights (New York: Rowman & Littlefield, 2009) (discussing manifestations of white supremacy online); Joel Reidenberg, “Yahoo and Democracy on the Internet” (2002) 42 Jurimetrics J 261-280 (examining a French court order requiring Yahoo to restrict access to Nazi memorabilia online); Southern Poverty Law Center, “Misogyny: The Sites,” Southern Poverty Law Center Intelligence Report 145 (Spring 2012), online: <www.splcenter.org/get-informed/intelligence-report/browse-all-issues/2012/spring/misogyny-the-sites> (discussing popular online sites that propagate misogyny) [SPLC]; Simon Wiesenthal Center, Digital Terrorism and Hate (2016), online: <www.digitalhate.net> (reporting on terrorism, anti-Semitism, and other hate speech online) [Wiesenthal]; League for Human Rights of B’nai B’rith Canada, Audit of Anti-Semitic Incidents, online: <www.bnaibrithaudit.ca/> (reporting on incidents of anti-Semitism in Canada) [B’nai B’rith],
 See Weisenthal, B’nai B’rith, and SPLC, ibid.
 See e.g. Melissa Delgado et al., “Discrimination and Mexican-Origin Adolescents Adjustment: The Moderating Roles of Adolescents’, Mothers’, and Father’ Cultural Orientations and Values” (February 2011) 40:2 Journal of Youth and Adolescence 125-39 (finding that perceived discrimination was positively associated to depression, risky behaviours, and deviant peer affiliations among Mexican youth); Danielle Keats Citron, “Cyber civil rights” (2009) 89:1 Boston University Law Review 61-125 (discussing how online hate against women, people of color, and other traditionally disadvantaged classes should be understood and addressed as civil rights violations).
 See e.g. Fairbairn supra note 20; LEAF #Cybermisogyny Report supra note 18. Also see: Jordan Fairbairn & Dillon Black, Cyberviolence against Women & Girls (Ottawa: Ottawa Coalition to End Violence Against Women, 2015) <http://www.octevaw-cocvff.ca/sites/default/files/CyberViolenceReport_OCTEVAW.pdf> [OCTEVAW]; Alma Estable & Mechthild Meyer, Project Shift: Needs Assessment Summary (Toronto: Young Women’s Christian Association Canada, 2015), online: <www.ywcacanada.ca/data/documents/00000460.pdf>.
 Fairbairn, supra note 20 at 231.
 See e.g. Safety Net Canada, Assessing Technology in the Context of Violence against Women & Children: Examining Benefits & Risks (Vancouver: Safety Net Canada, 2013), online: <www.bcsth.ca/sites/default/files/SNC/SNC_AssessingTechVAWC-ES-2013.pdf>; Safety Net Canada, ‘‘Technology Misuse and Violence against Women: Survey’’, online: <http://bcsth.ca/sites/default/files/SNC/SNC_TechMisuse-Infograph2013-English.pdf >; Safety Net Canada, Safety Net Canada Summary Report Survey of Canadian Anti-Violence Workers on Technology Abuse 2012, online: <http://bcsth.ca/sites/default/files/SNC/SNCTechAbuseSurveySummary2013Final.pdf>.