We 'haven't quite got the formula down' to fight bad behaviour on social media
'Why not shame and embarrass others ... if there are no negative consequences?'
A Playboy model shares a photo of a nude, unsuspecting stranger in their gym's locker room. Twitter users unleash an onslaught of racists posts at a black actress. A hit rapper surreptitiously records a cellphone conversation and shares it via Snapchat.
Bad behaviour via social network seemed to reach a boiling point this week and embroil a host of prominent pop culture figures. As our online and offline lives continue to intertwine, are we lacking real-world legal consequences to and enforcement of social media offences?
"Why not shame and embarrass others, especially the vulnerable, if there are no negative consequences? If people had a stronger sense that online abuse would be followed by legal or social sanctions, then we surely would have less of it," according to Danielle Keats Citron, law professor at the University of Maryland and author of 2014's Hate Crimes in Cyberspace.
"Taking a photo of a woman changing in a bathroom betrays deeply held expectations of privacy. There is a disconnect between law and our understanding of it," she told CBC News.
Bold, nasty proclamations have become entirely public and normal, where they used to be the kind of thing you had to say behind closed doors, if you said them at all.— Andrea Slane , legal scholar
"A serious and sustained conversation about legally protected privacy interests, proscribable threats and prohibited stalking is long overdue."
The adage that any press is good press "has been democratized by social media, so that anyone can try to instigate their own drama, controversy or limelight instantly," said Slane. She believes these high-profile incidents are part of a disturbing trend in online expression.
"Bold, nasty proclamations have become entirely public and normal, where they used to be the kind of thing you had to say behind closed doors, if you said them at all."
But could Taylor Swift actually sue Kanye West for recording and his wife, Kim Kardashian, for posting their phone conversation?
Might police charge Playmate Dani Mathers for sharing her body-shaming image of a naked fellow gym-goer?
Are the users behind venomous Tweets directed at comedic actress Leslie Jones uttering hate speech?
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In theory, people who make disparaging comments publicly on Twitter could be liable for defamation or uttering hate speech, according to Ariel Katz, associate professor at the University of Toronto's faculty of law.
Practically speaking, however, seeking legal redress in this manner is "very rare and costly to do," he said.
Some earlier Canadian laws dealing with online harassment are no longer in effect. They include Section 13 of the Canadian Human Rights Act, which protected against the promotion of hate online but was criticized for being overly restrictive and repealed in 2012, and Nova Scotia's landmark Cyber-Safety Act, Canada's first law aimed at protecting victims of online bullying, but criticized as too broad and ultimately struck down.
"We are still in an era where the fact that social media involves expressive content is causing a lot of complications," Slane noted. She said the recent Elliot case set ground rules about criminal harassment online.
Meanwhile, in the U.S., "offensive, hateful speech is fully protected speech, unlike in Canada, Germany, and France," according to Citron.
"There are certain narrow categories of speech that law can punish and redress, including … invasions of sexual privacy … and intentional infliction of emotional distress of purely private individuals about private matters."
Laws are evolving
Legal scholars are constantly studying possible legal changes, Katz said. However, rather than rush to create new legal legislation, he advocates caution to avoid drafting something "that turns out to be overly broad and has unintended consequences."
So, for instance, Mathers will likely need to read up on invasion of privacy and the Video Voyeurism Prevention Act. Meanwhile Kardashian (daughter of late lawyer Robert Kardashian) apparently seems confident that the different U.S. state laws on wiretapping cover her and West's recent Snapchat exposé.
As for Ghostbusters star Jones, while the barrage of venomous tweets she received might fall under protected speech in the U.S., the public appeal she and supporters made to Twitter itself eventually fell on receptive ears.
Demanding action from the tech companies is likely part of the answer, said Slane.
"Twitter, Snapchat, Facebook — they are working all of this out as well, at their own pace, and would prefer not to be mandated by law to do anything. What law could provide, though, is minimum requirements," she said.
"We keep trying to address bad social media behaviour that causes real harms to people, but haven't quite got the formula down yet... The more we live our lives online, the more online and offline lives are integrated, and the more consequential online life becomes, the more we need to rethink what we can and cannot regulate in social media spheres."
Indeed, Citron said, "law is evolving" to address the new reality of this uglier side of social media.
"Privacy invasions involving social media are often dismissed as no big deal because police do not understand the critical role such tools play in our economic, social and political lives. Much learning is needed to close these gaps of understanding."