Cyberbullying and public policy: an evolutionary perspective

Published in UniSA Student Law Review (2015) vol. 1, no. 1, pp. 62-67.

Abstract: This article is a comment on Peta Spyrou’s article in this volume entitled ‘Civil Liability for Negligence: An Analysis of Cyberbullying Policies in South Australian Schools’. It considers three aspects of the problem: the first focuses on the implications of the fact that  cyberbullying is not a new form of social activity but is rather a new form of bullying; the second explores some of the possible policy and social responses to the problem; and the third draws from the insights of evolutionary economics and underlines the importance of respecting the rights of children both to be protected from bullying as well as to develop their identities.

Available at UniSA Student Law Review

A social problem, not a technological problem: Bullying, cyberbullying and public policy

With Simon Breheny

Introduction: Bullying among children is a significant and serious issue. In recent years, thephenomenon described as “cyberbullying” has received a large amount of social, political, and academic attention.

The Commonwealth government has announced that it is seeking legislative change to deal with cyberbullying. The government plans to institute a Children’s e-Safety Commissioner with power to takedown harmful content directed at children from the social media sites.

The Children’s e-Safety Commissioner is a serious threat to freedom of speech.

The purpose of this paper is to outline the scope of the cyberbullying problem, the conceptual framework within it must be understood, and develop principles by which policymakers can address the cyberbullying problem. Without understanding the cyberbullying phenomenon it is impossible to devise effective policy that will not have unintended consequences and threaten basic liberties like freedom of speech. Unfortunately it is not clear that the government has clearly understood the causes, consequences, and characteristics of cyberbullying.

This paper argues that cyberbullying is a subset of bullying. It is bullying by electronic means. It is not a problem of a different kind from bullying in an offline environment. Cyberbullying is a social problem, not a technological one.

Available in PDF here.

The cyberbullying moral panic

With Simon Breheny

Bullying among children is a serious problem. At its tragic worst it can lead to suicide. But it is a serious social problem, not a technological one.

Earlier this year, the Coalition government released a discussion paper ‘Enhancing Online Safety for Children.’ The proposals contained within the discussion paper have been drafted with the intention of tackling cyberbullying — that is, bullying using digital technology. Unfortunately they will do nothing to solve the bullying problem. And, by establishing a ‘Children’s e-Safety Commissioner’ with powers to take down material from social media websites, it will increase government control over the internet and clearly threaten free speech.

The discussion paper outlines three key measures the government aims to implement to address cyberbullying: the establishment of the Children’s e-Safety Commissioner; developing an effective complaints system, backed by legislation, to get harmful material down fast from large social media sites; and examining existing Commonwealth legislation to determine whether to create a new, simplified cyberbullying offence.

The key plank in this policy is the creation of a new power to ‘get harmful material down fast.’ This is an explicit censorship power. Pure and simple. And it’s a particularly disappointing development coming from this government. In a speech to the Samuel Griffith Society in 2012 entitled ‘In Defence of Freedom of Speech’, then Opposition legal affairs spokesman Senator George Brandis said:

The measure of a society’s commitment to political freedom is the extent of its willingness to respect the right of every one of its citizens to express their views, no matter how offensive, unattractive or eccentric they may seem to others.

The proposed establishment of an e-Safety Commissioner is not a policy that lives up to Brandis’ high-minded rhetoric. Indeed the proposal moves Australia in precisely the opposite direction. If the Coalition’s e-safety policy is implemented, this government will be doing more to restrict free speech than it is to defend it.

Several concepts used in the discussion paper are ambiguous. The term ‘harm’ is itself a term that describes a broad range of conduct, from the very serious to the trivial. Whenever the basis of a bureaucratic power is vague it gives discretion to public servants. In the case of the e-safety commissioner, it means that none of us can be sure whether we’ll be censored for something we say online.

The proposed regime carries some very serious risks. The commissioner will not be infallible. There will be mistakes, and content that should never have been taken down will be removed by the government.

We’ve seen this before. In June last year, the Australian Securities and Investments Commission admitted that it had accidentally blocked 250,000 websites in an attempt to tackle online scams.

Those who cannot remember the past are condemned to repeat it. The risk of inadvertent removal of material is serious. But perhaps even more concerning is the idea that the government should grant itself this kind of power at all. It’s not the role of government to judge what is and is not acceptable social discourse. Those important decisions must be reserved for rational, free individuals.

And like any government initiative there is the risk of scope creep. What starts as a small censorship regime grows into a large censorship regime. In a liberal democracy there is only one acceptable level of censorship: none.

On the flip side, it will be impossible for the e-Safety Commissioner to protect children from all cyberbullying. Lines have to be drawn somewhere. And wherever the government creates that threshold there are going to be children who will be the subject of bullying that is not caught by the government’s cyberbullying regime. Additionally, no matter how carefully this policy is implemented there will be cases where the commissioner will fail to remove legitimately harmful material.

Of course, that won’t stop parents from trusting that the government is putting an end to cyberbullying. Governments love to pretend they have everything under control. And many parents will trust that the commissioner has covered the field. But the risk is that the existence of this program provides a false sense of security. Parents will rely on the government to protect their children. This attitude is instinctive — the government is taking more responsibility so I don’t need to take as much.

This attitude has a dramatic impact on consumer behaviour. Parents who rely on the e-safety commissioner no longer direct capital towards free market answers to cyberbullying. This outcome is a direct result of the government intervening in an area where government action is unnecessary. Implementing a government-run online safety program creates perverse incentives that lead to fewer privately developed solutions.

There are a very broad range of tools available to parents, teachers and schools which can assist in effectively targeting cyberbullying.

The most important mechanism that exists to deal with cyberbullying is direct reporting to the social media networks themselves. It’s in the interest of social media sites to have highly developed reporting mechanisms in place. Facebook allows users to report violations of its statement of rights and responsibilities. The statement contains an explicit reference to bullying: ‘You will not bully, intimidate, or harass any user.’ The outline of Community Standards expands on its uncompromising stance: ‘Facebook does not tolerate bullying or harassment. We allow users to speak freely on matters and people of public interest, but take action on all reports of abusive behaviour directed at private individuals. Repeatedly targeting other users with unwanted friend requests or messages is a form of harassment.’

Twitter, LinkedIn, Pinterest, Google+, and other social media sites likely to come under the purview of the government’s commissioner have all developed similar policies.

Distinct from internal reporting tools, there is also a growing range of anti-cyberbullying software available to parents. The number of programs available is impressive. They range in scope, complexity, format and price, and can provide a remarkable amount of parental control.‘CyberSynchs’ is an application that identifies bullying and other inappropriate behaviour, and then sends a report to parents. Trend Micro’s ‘Online Guardian’ allows parents to monitor their children’s social media traffic for pre-programmed key words and phrases.

There are hundreds of these products currently available. And more are being developed all the time. Primary and secondary schools also install filters at the network level. These are the solutions that are available to parents seeking to protect their children from cyberbullying.

There are also a number of existing legal remedies that cover the same or similar conduct as that targeted by the government under the e-safety policy. Violent threats; menacing, harassing or offensive conduct online; stalking; and unauthorised access to accounts are all criminal offences.

The truth is that cyberbullying is bullying. It’s awful. It’s damaging.But cyberbullying is no more or less a problem than run-of-the-mill playground bullying. The same approach should be used for both. Parents are more in tune with the emotional disposition of their own children. They know better than any government-appointed commissioner how their child will react to incidents of bullying, and they know best how to deal with it. Parents are the best anti-bullying advocates their children will ever have.

The proposed Children’s e-Safety Commissioner is a policy born of lliberalism. It patronises parents, and it infringes freedom of speech. The government should not proceed with its e-censorship proposal.

Combatting The Cyberbully Myth

Why do we keep telling children that the law cannot protect them against severe cyberbullying? Time and time again politicians and the press claim that there is nothing police or parents can do if a child is being bullied on the internet, and that government needs to step in.

The parliamentary secretary for communications Paul Fletcher claimed this month that for children who were victims of bullying online, if sites like Facebook didn’t help, ”you really have no redress at all”.

This is gobsmackingly negligent. There are Commonwealth laws on the books that were written to do exactly that.

Section 474.17 of the Criminal Code makes it unlawful to use a carriage service – that is, telephone or internet – to menace, harass, or offend. The penalty can be jail.

Then, should the criminal code not be enough, there is defamation law (almost all acute cyberbullying involves defamatory speech), anti-stalking laws, laws against harassment and blackmail, and laws that protect people against threats and fears of violence to the person.

Indeed, some of these laws are excessively powerful.

Still, the fact is they exist.

The Abbott government is holding an inquiry into its election promise to establish a ”children’s e-safety commissioner” who is supposed to protect kids from cyberbullying.

This commissioner would have the legal power to force social media companies to remove abusive content from their sites in response to complaints from the public.

”Remove”, of course, is a synonym for censor. It’s bizarre that a government that promised to run a ”freedom agenda” would want to create a grand new bureaucratic body to censor the internet.

(Ironies abound. Tony Abbott announced this internet censorship proposal just a few days after he announced he would repeal section 18c of the Racial Discrimination Act because the latter was an unconscionable limit on the human right to free expression.)

But anything to help victimised children, right? Well, not if it won’t actually help them.

Bullying is a very serious problem. The harm of bullying should not be played down. At its worst and most tragic, it can lead to suicide. The desire that the government has to do something about bullying is irreproachable. But there are a lot of widely held misconceptions about the nature of cyberbullying.

First of all, there is no such thing as ”cyberbullying”. There is just bullying. The research evidence demonstrates clearly that people who are bullied online are also bullied offline. Of course, this makes intuitive sense. Bullying is a social problem, not a technological one.

In fact, the academic literature consistently suggests cyberbullying is less of a problem than traditional bullying. As a 2012 paper in Complementary Pediatrics put it, ”School bullying is more common than online bullying.” Furthermore, being bullied at school is more distressing.

It’s important not to take the very real bullying problem and turn it into a moral panic about technology.

Bullying is intentional aggressive conduct sustained over time that incorporates some kind of power imbalance – real or perceived – between the bully and bullied. Having a bureaucrat whose job it is to delete individual instances of abusive speech online won’t tackle the basic problem of children being cruel to each other.

Certainly not if a victim is subjected to sustained harassment the moment they return to the playground. Or if the abuse just migrates to less easily monitored websites.

A children’s e-safety commissioner would only offer adults a false sense of security that the bullying has been dealt with.

The major social media sites are doing an increasingly effective job at policing their own networks, and without the iron fist of the state supervising them. Facebook, the site with the youngest cohort, has developed rather extensive systems to report and ban abusive users.

Perhaps surprisingly, a more effective mechanism than reporting users for abuse is the humble unfollow and block. This neutralises the cruelty, therefore reducing the harm, and is necessary to develop coping strategies for young victims.

A lot of cyberbullying is apparently done by text message. Most mobile phones now have a feature that allows users to block calls and messages from certain numbers.

And in the case of severe abuse, there is always recourse to the law. Too often people use the word ”bullying” to describe serious criminal conduct including death threats and physical assault. But the biggest barrier to reducing the harm from bullying is the fact that many children simply don’t tell their parents or teachers what is happening. Too often adults don’t have a chance to help, to provide counsel or support.

So we have to educate parents to identify signs that their children are being bullied, and what can be done.

We have to educate children about the many institutional, legal, and technological resources available to support them.

But most of all, we have to stop this incredibly dangerous political falsehood that there are no remedies available for children who are being bullied, online or off.

Submission to the Department of Communications Discussion Paper ‘Enhancing Online Safety for Children’

With Simon Breheny

Executive summary: The government’s proposed Children’s e-Safety Commissioner represents a serious threat to freedom of speech and digital liberty. The proposed regime would create extraordinary new powers, which would be conferred on a government-appointed digital censor. The power to order certain material to be pulled down from large social media sites also gives discretionary power to a government bureaucrat.

The proposal misdiagnoses the problem of bullying on and offline. Bullying can be a significant and very harmful social problem – whether on or offline. Cyberbullying is not a special case demanding of specific laws. It should be dealt with using the same legal framework as bullying that takes place offline.

The existence of a Children’s e-Safety Commissioner will not prevent or protect young people against cyberbullying. There are many forms of harmful online activity that will not be caught by the government’s proposed regime. The regime may also drive cyberbullying to sites that are less easily monitored by parents and guardians. Smaller social media sites are less likely to have rigorously enforced community standards yet the government’s proposal is aimed only at large social media sites.

The proposal also ignores existing remedies. There are a variety of current laws that exist to catch the same conduct that the government seeks to proscribe. Legal remedies for stalking, harassment, intimidation and a range of other unacceptable behaviours are already available to victims of bullying.

The Children’s e-Safety Commissioner may provide a false sense of security among parents that cyberbullying has been dealt with. Some parents may not feel that their own efforts are still necessary when faced with the existence of the government’s cyberbullying program. Parents may fail to employ monitoring and security software believing it to be redundant. However, there will be cases of cyberbullying that are not caught by the government’s scheme but that would have been caught by parental vigilance.

Available in PDF here.