Sage Journals: Discover world-class research

Abstract

Legal remedies in response to technology-facilitated violence and bullying (TFVB) have often overshadowed the creation of alternative responses. While the framing of law as the most impactful remedy can result in the false belief that this issue has been adequately dealt with through legal regulation, in practice legal options are not utilized by the majority of those harmed by TFVB, do not provide many of the core supports that targets of TFVB seek to access, and offer limited possibilities for prevention and culture change. Responding to growing demands for alternative responses to TFVB, this article provides an analysis of the province of Nova Scotia’s CyberScan unit—a government enforcement unit offering alternative supports and responses to TFVB—to explore the efficacy of implementing alternative responses to TFVB in practice.

Keywords

Alternative responses cyberbullying law nonconsensual intimate image distribution technology-facilitated violence

Introduction

Technology-facilitated violence and bullying (TFVB) describes a continuum of harmful behaviors that are carried out using technology to some extent (Bailey et al., 2021; Henry et al., 2020). This continuum includes more severe acts that might be described as violence¹ (e.g. nonconsensual intimate image distribution, threats of sexual assault or bodily harm made using social media, frequent threatening texts from an ex-partner) (Dunn, 2021: 36) and acts that might be described as bullying² (e.g. spreading rumors about someone’s sexual life over social media, screenshotting a private conversation and distributing it to others to ridicule the target, creating a fake social media account under a target’s name to make fun of them) (Bailey, 2016; Pennell et al., 2022). While anyone can be targeted by acts of TFVB, many marginalized groups have experienced increased rates of these acts (e.g. the disproportionately high rates of nonconsensual intimate image distribution experienced by LGBTQ + people and people with disabilities) and/or increased impacts from these acts (e.g. the reputational impacts often experienced by women who have their intimate images shared without consent due to sexist and sex negative victim blaming and shaming) (Powell et al., 2020). Additionally, these acts often engage pre-existing discriminatory beliefs—such as sexism, racism, ableism, homophobia, and transphobia—and/or occur as part of broader contexts of sexual or domestic violence (Henry et al., 2020). TFVB has become increasingly ubiquitous and targets of these acts have reported experiencing—sometimes severe—psychological, social, and economic impacts (Rackley et al., 2021). In the most tragic cases, victims have taken their own lives in the aftermath of experiencing TFVB (Choo, 2015). These tragic cases paired with the ubiquity of these acts have resulted in public outcry and calls to develop adequate responses to address this widespread issue.

Governments in several international jurisdictions have responded to these calls by creating criminal and civil law responses to various acts of TFVB (Caletti, 2021; Eaton and McGlynn, 2020), such as the criminalization of nonconsensual intimate image distribution and civil law responses to “cyberbullying”³ (Dodge, 2021a; Henry and Witt, 2021; Pennell et al., 2022; Yar and Drew, 2019). As is often the case when governments are called upon to respond to harm, the creation of legal remedies has been framed as amounting to taking the issue of TFVB “seriously” and has often overshadowed the development of alternative responses and victim supports. While the framing of law as the most impactful remedy can result in the false belief that this issue has been adequately dealt with through legal regulation (Bailey and Liliefeldt, 2021; Shariff and DeMartini, 2015), in practice legal options are not utilized by the majority of those harmed by TFVB, do not provide many of the core supports that targets of TFVB seek to access, and offer limited possibilities for prevention and culture change. While acknowledging that legal responses will offer a recourse that is useful, desired, and accessible to a small portion of those harmed by acts of TFVB, scholars of technology-facilitated harms have increasingly called attention to the need for alternatives to formal legal responses (Flynn and Henry, 2021; Hamilton, 2018; Hrick, 2021). Responding to this call, in this article I undertake an analysis of the province of Nova Scotia’s CyberScan unit to explore the efficacy of implementing alternative responses in practice. CyberScan is a government enforcement unit that was created in 2013 as part of the enactment of Nova Scotia’s Cyber-safety Act (2013) which established both civil remedies and informal remedies for cyberbullying and nonconsensual intimate image distribution⁴. This legislation was created largely in response to the tragic case of Rehtaeh Parsons⁵, a Nova Scotian teenager who died by suicide in the aftermath of having an intimate image of her (captured during an alleged sexual assault) nonconsensually distributed and used as fodder for widespread sexist bullying and cyberbullying by her peers. Rehtaeh’s case revealed that many typical policing and law approaches are unable to address the core and immediate needs of victims of TFVB, such as the expedient takedown of nonconsensually distributed intimate images (Segal, 2015). With this case as a catalyst, CyberScan became one of the earliest government-funded bodies in the world, along with New Zealand’s Netsafe and Australia’s eSafety Commissioner⁶, to provide responses to TFVB and supports for those impacted that do not require engagement with police or formal legal avenues.

Based on my interviews with CyberScan agents in 2016 and 2020, I show that CyberScan is providing vital alternative responses and, at the same time, requires several updates to ensure expedient and holistic supports. Both CyberScan’s successes and shortfalls offer a useful guide for understanding the range of responses required to address technology-facilitated harms. While the need for alternative responses to TFVB is increasingly well documented, this article is one of the first to closely analyze an organization providing such alternatives.

Methodology

This article is part of a broader research project investigating informal, restorative, and educational responses to TFVB based on interviews with CyberScan staff and restorative approaches experts in Nova Scotia, Canada. In-depth, semi-structured interviews were completed with four CyberScan staff working in 2016, including the unit’s complaints coordinator and three government enforcement agents (two additional agents were employed by CyberScan at this time but were not available for interviews due to travel commitments), and three CyberScan staff working in 2020, including one complaints coordinator and two government enforcement agents (this was the entire staff of CyberScan at this time). To ensure interviewees could speak openly about both the successes and challenges that they perceived in the CyberScan approach, interviewees were anonymized and are all referred to as “agents” and cited using anonymous codes. CyberScan interviewees from 2016 are cited as CS1, CS2, CS3, and CS4 and interviewees from 2020 are cited as CS5, CS6, and CS7. In 2021, interviews were also conducted with two restorative approaches experts that have provided guidance to the CyberScan unit. These restorative approaches experts are referred to using the anonymous codes RA1; RA2.

A semi-structured interview style allowed for unexpected topics and perspectives to emerge, while also ensuring some consistency through an interview guide that included 19 questions regarding the successes and shortcomings of CyberScan’s approach. Interviews ranged from 45 to 120 minutes depending on the talkativeness of the interviewee. All interviews were voice recorded and transcribed in full. Interviews were coded using QSR NVivo qualitative research software. This software allows the user to code interview transcripts into thematic “nodes” in an organized, efficient, and iterative manner (Bringer et al., 2006). Nodes were assigned through an initial process of open coding all interviews, followed by a second and third review of all interviews to complete a deeper analysis that included making comparisons between nodes and writing conceptual and theoretical memos (Bringer et al., 2006). This article focuses on the nodes titled “shortcomings of legal response,” “alternative responses offered,” and “what complainants want.”

The need for alternative responses to TFVB

In rare cases where complainants are both interested in pursuing legal options and able to overcome the many hurdles to accessing legal recourse (Bailey and Mathen, 2019), legal responses to TFVB may provide a sense of justice and accountability, access to some supports for victims (and to compensation in the civil context), and some measure of deterrence (Eaton and McGlynn, 2020; Henry and Witt, 2021). Many legal scholars also highlight that the law plays an important expressive role by communicating that more severe forms of TFVB have been deemed wrongful by the state (Caletti, 2021; Citron and Franks, 2014; Dunn, 2021; Eaton and McGlynn, 2020; Flynn, 2021; Flynn and Henry, 2021). However, for many of those directly impacted by TFVB, engagement with the law will be unappealing, inaccessible, or unable to meet their core needs. Thus, scholars of TFVB have increasingly argued that both criminal and civil law options have many shortcomings and should “only ever be seen as one of many varied and multiple means of ensuring justice and redress” (Rackley et al., 2021: 11; Shariff and DeMartini, 2015).

There are many limitations to criminal justice responses. Several of these limitations can result in acts of TFVB never being reported at all. For example, the long timelines of a criminal case are especially unappealing to victims of TFVB who often report that their central concern is the expedient removal of harmful content (Stevenson-McCabe and Chisala-Tempelhoff, 2021). In the many cases of TFVB that are committed by peers, family, friends, or partners, victims may also choose not to report as they do not wish to subject those in their lives to the significant and long-term impacts of being criminalized (Dodge and Lockhart, 2022; Pennell et al., 2022; Rackley et al., 2021). Victims may also avoid reporting due to the presence of discriminatory beliefs and inequalities in the criminal justice system. For example, in cases of technology-facilitated sexual violence, victims often avoid reporting to police due to well-founded fears of being victim blamed or shamed by law enforcement or other criminal justice personnel (Flynn and Henry, 2021; Henry et al., 2018; Jane, 2017; Rackley et al., 2021). Especially in marginalized communities, distrust of police and concerns of revictimization seem to result in even greater under-reporting of technology-facilitated harms (Aikenhead, 2021; Bailey and Mathen, 2019). At the same time, the criminal law can be “disproportionately enforced against those who are marginalized” (Bailey and Mathen, 2019: 666; Eaton and McGlynn, 2020), resulting in important equality issues regarding the impacts of criminal law and, in practice, creating additional reasons for marginalized communities to avoid relying on criminal responses (Bailey and Mathen, 2019; Dunn, 2021; Khoo, 2021).

Even when victims do decide to report acts of TFVB, scholars have found that police, prosecutors, and the judiciary can have limited awareness of what laws are applicable to tech-facilitated harms and limited technological literacy, resulting in low rates of successfully investigating and prosecuting these acts (Bailey and Mathen, 2019; Flynn and Henry, 2021; Khoo, 2021; Stevenson-McCabe and Chisala-Tempelhoff, 2021). Additionally, in those rare cases that do result in a successful trial, complainant and community interests may still not be well-served, as the “reactive and punitive” criminal law system is often unable to meet even the basic needs of those impacted by TFVB or address the beliefs that normalize this behavior (Bailey and Mathen, 2019: 695; Dodge, 2021b; Hamilton, 2018; Henry and Witt, 2021; Pennell et al., 2022). Therefore, criminal law should be “only one thread in a wider tapestry of responses” (Stevenson-McCabe and Chisala-Tempelhoff, 2021: 351).

Civil law can provide more appealing options for direct redress to victims in some cases, as “unlike the criminal law, civil law puts the victim-survivor [. . .] back in control” (Rackley et al., 2021: 23). In some jurisdictions, civil law remedies can be used to provide compensation to victims, to order the removal of harmful content posted online, or to order the deletion of intimate images that are being used to threaten a victim with potential exposure (Eaton and McGlynn, 2020; Rackley et al., 2021). However, an important barrier to using civil law is that “the cost of raising a civil claim often means that access to this form of redress is dependent on the availability of substantial resources” (Rackley et al., 2021: 23) and a considerable shortcoming of even successful cases is that “many perpetrators may well be, in effect, ‘judgment-proof’, having neither the means nor the inclination to respond appropriately to a judgment against them” (Rackley et al., 2021: 23). As discussed in my findings below, civil law may also be unappealing as, like criminal law, it is not always able to provide the expediency of response that is often key in cases of TFVB and, depending to some extent on allowances for anonymity, it may act to bring additional and extended attention to an act that the victim is trying to keep as private as possible. Although there are certainly ways civil law could be made more accessible to victims of TFVB (Young and Laidlaw, 2020), its existing form is often expensive, complicated, time consuming, and attention grabbing.

While approaches have been suggested to improve formal legal responses (Flynn and Henry, 2021; Young and Laidlaw, 2020), TFVB scholars widely agree that a range of tools should also be available beyond the law to effectively support victims, educate and hold accountable perpetrators, educate bystanders and frontline service provides, engage website owners and social media platform creators, and spark systems-level and culture change (Flynn and Henry, 2021; Hamilton, 2018; Hrick, 2021). For example, alternative options such as informal negotiation with respondents can sometimes “meaningfully address at least some forms of technology-facilitated violence without needing to resort to potentially costly, complex, and emotionally draining civil or criminal legal processes” (Hrick, 2021: 404) and technological supports can regularly result in the removal of illegal content with more expediency than a court order (Khoo, 2021). As Khoo reflects, “the law plays an important but ultimately limited role in the broader matrix of meaningful solutions, and must be contextualized as such to avoid complacency when it comes to pursuing non-legal solutions [. . .]” (Khoo, 2021: 222). Responding to the need to better understand alternative responses to TFVB in practice, the remainder of this article undertakes a case study of the CyberScan unit.

Alternative Responses & Supports in Practice: A Case Study of the CyberScan Unit

CyberScan responds to a range of case types involving the use of technology to harass, bully, or invade the privacy of an individual. This includes acts such as: online harassment against an ex-partner during child custody hearings (CS2); nonconsensual intimate image distribution or threats of distribution committed by ex-partners or peers (CS5; CS2); spreading rumors about, harassing, or publicly shaming a neighbor on a social media page for their community (CS7; CS5; CS4); creating fake social media accounts to impersonate a peer (CS2); using social media or text message to repeatedly contact or threaten a peer (CS2); and posting derogatory comments or private sexual information about a peer on social media (CS1;CS2). The range of cases responded to include both those that are clearly criminal or legally regulated in Canada, such as nonconsensual intimate image distribution and criminal harassment, and cases that reflect harms or conflicts that may not rise to the level of legally regulated conduct. This range of cases is responded to with a variety of options, such as: helping complainants navigate civil or criminal law options when applicable, providing complainants with emotional or technological support, informing respondents of the harm they are causing and the potential legal consequences of their actions, and providing educational presentations in the community.

From its inception, CyberScan has responded to the vast majority of cases using what agents refer to as “informal” responses. The two most common responses CyberScan provides are technological supports (e.g. removing harmful online content or blocking harassers) and emotional support to deal with the impacts of TFVB (CS7). Much more rarely, CyberScan agents attempt to stop ongoing TFVB by contacting the respondent to educate them about the harms they are causing and the potential legal consequences of their actions. And even more rarely, CyberScan agents assist complainants in navigating criminal or civil law options. Echoing the need for alternative responses and supports described by TFVB scholars, agents consistently explained that most complainants do not want to initiate a formal legal response and are instead looking for supports for themselves and/or intervention with the respondent outside of the legal system. The first subsection below describes CyberScan agents’ perspectives on why complainants rarely choose to access formal legal avenues and what this can tell us about the kinds of responses and supports that those impacted by TFVB are seeking. The subsequent subsections detail what can be learned from the strengths and shortcomings of the most common alternative options that CyberScan provides and how these lessons could inform future attempts to design holistic responses to TFVB.

Disinterest in Legal Avenues

Although one of the core mandates of CyberScan is to assist complainants in navigating the civil law options Nova Scotia created to respond to TFVB, agents reported assisting complainants in this way in only a handful of cases throughout the unit’s history (CS2; CS7). Agents described several reasons why complainants are rarely interested in pursuing civil law remedies. One barrier was the associated stress and cost of applying for court orders:

It’s a lot of pressure for somebody to have to go fill out all those forms. If someone is harassing you or whatever, think of all the stress you already have in life, whatever is going on with kids, financially, relationship breakdown, and now maybe you don’t have the capacity electronically to do this, or you don’t have the money, or a vehicle to get from point a to point b for the courthouse. And now you’re responsible to download all this paperwork, fill it out appropriately, and then file it, and then there is a cost to that too (CS4).

In rare cases in which informal processes had not resolved the matter and the complainant expressed interest in legal recourse, agents stated that complainants rarely chose to move forward with the application because “the court process was too onerous for them to actually want to pursue it” (CS7). The slow pace of the typical court process was an additional disincentive, as in many cases complainants recognized that by the time court orders could be made the damage would already be done due to the ease with which digital content can be widely circulated and reposted (CS7). Some of these shortcomings of civil law could be addressed by removing some of the costs and barriers that result in long timelines and onerous experiences for complainants, as Young and Laidlaw (2020) recommend in terms of a fast track option to expediently order the removal of nonconsensually shared intimate images; However, it was not only the challenges of accessing civil remedies that were seen to deter complainants from utilizing the civil law. Agents also explained that, although anonymity can be granted to complainants in some cases and is automatically applied to those under 19, complainants in those cases where anonymity is not promised often worry that going to court will simply bring more attention to the rumors, private information, and/or discriminatory content being disseminated about them (CS5, CS3, CS7). Additionally, complainants in small communities often worry that their identity could easily be revealed by word of mouth even if anonymity is granted (CS5):

Complainants definitely [want to keep it informal], especially in small communities. You know, if you can handle this here. . . it’ll go away here. [If you take it to court] the problem can get bigger, there’s a fear of further exposure, there’s fear of public display, of it becoming a bigger thing than it maybe needed to. Certainly a lot of it was the private sexual information or images for females, especially. So the bigger it may have become, was certainly a problem for them. We did it the right way. I have no doubt about it. . .. with that informal resolution. [. . .] It’s the most efficient way to deal with the social media problem that we’re facing for sure. (CS3)

This agent explained that, especially for women and girls who have had intimate images or private information/rumors about their sexual lives digitally disseminated, a court process is often seen as counterproductive, as it may result in additional and extended attention being given to private content or disparaging rumors. This echoes existing findings from feminist scholars that female victims of sexual rumor spreading or nonconsensual intimate image distribution often prioritize expedient removal of content to avoid any further victim blaming or shaming that results from sexual double standards and sex negative beliefs (Dobson, 2019; Rackley et al., 2021). While civil law remedies have been utilized in a handful of CyberScan’s cases where informal responses were deemed inadequate, it seems that these remedies are rarely more appealing than the informal options offered by CyberScan. Therefore, in addition to considering ways to make civil options more accessible (Young and Laidlaw, 2020), these interviews provide strong evidence for resourcing alternative responses and supports.

In those cases that rise to a criminal level, CyberScan agents likewise explained that complainants are often uninterested in accessing a criminal law response. Most complainants wish to avoid the blunt and slow criminal justice process in favor of accessing informal supports to address their concerns in more expedient and victim-centered ways (CS2; CS5; CS6):

. . .they just want it to stop. [. . .] I find they don’t want to go to court and, you know, keep the attention on this for a long time. No, they want help to get the image down or the content down and get that deleted so that it’s not posted again and it stops spreading to others. They want it to stop so they can get on with their lives. (CS2)

Echoing the TFVB scholarship described above (Bailey and Mathen, 2019), agents also explained that some complainants also prefer informal responses because they do not want to criminalize the respondent. This is especially the cases where a complainant is or was in a close relationship with the respondent and cares for their well-being, resulting in a desire for the wrongdoer to understand the harm they are causing without creating additional harm through criminalization (CS5). This agent provides the example of a complainant who had her intimate image distributed without consent by an ex-partner that was struggling with unhealthy alcohol use. The complainant wanted the respondent to know that what he did was harmful and to get support to deal with his use of alcohol, but she did not see a criminal response as helpful (CS5). This agent explained that, when considering what response will be most helpful, it’s useful to ask “Is it best to charge them criminally with that? Or is it best to look at the particular incident and kind of learn from it? And especially if the person is remorseful and takes responsibility for it and we can kind of move forward . . . it’s just so much better to go ahead with it that way” (CS5). Finally, in some cases agents report that complainants already attempted to report to law enforcement before coming to CyberScan and had found that police officers were ill-equipped to respond to cases involving digital technology or social media platforms (CS2; CS3; CS7). The reluctance to engage civil or criminal law that was perceived by CyberScan agents echoes many of the shortcomings of formal legal responses that scholars of TFVB have highlighted (Choo, 2015; Dodge and Lockhart, 2022; Powell and Henry, 2017; Shariff and DeMartini, 2015) and confirms the need for alternative responses that do not require engagement with the formal legal system (Khoo, 2021).

Despite recognizing the many reasons that complainants may not wish to engage legal processes, some CyberScan agents seemed to remain invested in the cultural belief that law is the best way to achieve justice and support in response to harm (Flynn, 2021). That is, while all CyberScan agents interviewed understood the many reasons why complainants might not wish to proceed with a formal legal process, some agents seem to strongly encourage complainants with criminal level cases to file a police report. For instance, one agent stated: “obviously if there is a criminal element I will say ‘These are criminal offences’, and though we have a role as well I will refer them to police, like say ‘You really need to go back to the police or make a report to the police’” (CS7). Likewise, for non-criminal cases, CyberScan’s website and resource materials are primarily focused on providing civil law advice (Dodge, 2021a) and fail to highlight the informal supports and responses, described below, that are in fact most in demand. These examples demonstrate that, even with the deep understanding of the limits of law in response to TFVB that agents expressed, it can be difficult to challenge the deeply ingrained assumption of law as the necessary path to justice.

Technological Support

While some agents may push complainants to engage with formal legal responses, the most common responses that victims are choosing to access from CyberScan are informal victim supports and informal engagement with respondents to educate them about the harms and potential legal consequences of TFVB, with the most common request by far being technological support. Technological support can include helping complainants to remove nonconsensually distributed intimate images or bullying content from social media platforms, websites, or search engines or otherwise helping complainants to navigate technological supports (e.g. learning how to block a harasser, change privacy settings, or report a fake account made in one’s name). CyberScan can help complainants navigate publicly available avenues of tech support (e.g. blocking mechanisms on various social media platforms or requests to delist one’s intimate image from Google search results) or by using their “established strong networks [. . .] with social networks like Twitter and Facebook” to expediate this process (CS5). In some cases, CyberScan may also contact the respondent to ask them to voluntarily remove harmful content that has been posted publicly or to delete intimate images of the complainant that remain on their device. Agents report that most victims are only interested in accessing these technological supports and are not interested in engaging the respondent further or accessing legal options. Even in clearly criminalizable cases such as nonconsensual intimate image distribution, agents explained that most complainants “just want it to stop, they want the image deleted [. . .], that’s mainly it. [. . .] Like if a woman is calling and saying, ‘I don’t want him contacted, I just want that image taken off the web’, then we will go on there and find out how to take the image down and offer as much support as we can with that” (CS5). This echoes existing research finding that this kind of expedient technological support is in high demand among victims of TFVB (Choo, 2015; Segal, 2015; Shariff and DeMartini, 2015) and that, in cases of nonconsensual intimate image distribution specifically, expedient support in removing images is often “the key priority for victim-survivors” (Eaton and McGlynn, 2020; Rackley et al., 2021: 25).

While technological support is a much-needed resource and agents report many cases where, especially illegal content, was removed quickly (CS2), there are certainly many barriers to expedient and effective responses. For instance, agents explained that, while most dominant social media platforms are fairly responsive to requests for removing content that is illegal or doesn’t meet their platform’s community standards, some platforms and websites are much more difficult to work with. Notably, websites and platforms that are devoted solely to posting bullying and harassing content (e.g. the website “The Dirty”) will often refuse to remove harassing or private content about an individual unless they receive a court order (CS6). Additionally, even when working with the dominant social media platforms that can be relatively responsive, issues such as fake accounts can be more difficult to expediently remove due to the challenges of proving they are fake and meant solely to harass (CS6). Agents describe that content removal is often slower than the complainant would like—“[One of the most challenging aspects of the job] is our inability to have social media companies provide us the closure that we want instantly. [. . .] it’s a challenge to get an immediate response” (CS3)—and in some cases “technology moves so quick that the damage is already done” (CS6). Social media platforms and websites are certainly faced with a serious challenge in responding to huge numbers of takedown requests and attempting to balance considerations of harms caused versus freedom of expression (Khoo, 2021; Mathen, 2022), however there are emerging recommendations for helping to decrease response times to clearly criminal content (See: Khoo, 2021) and some support organizations internationally, such as the UK’s Revenge Porn Helpline, offer examples of how to provide expedient and comprehensive technological supports. Despite the challenges to expediency faced by CyberScan (including by their own limited hours of operation), responses from such bodies are nonetheless regularly significantly more expedient than the famously slow pace of the law and can be much more responsive to the immediate concerns of those impacted by TFVB.

Emotional & Informational Support

Those impacted by TFVB can experience a range of impacts requiring emotional and psychological supports, and are often in need of information about the nature and impacts of TFVB (Beran et al., 2015; Rackley et al., 2021). Especially in cases of technology-facilitated sexual violence, gender-based violence, or hate, emotional supports can help to reassure victims that they are not alone and that the discriminatory beliefs underlying these harms are unacceptable (Louie, 2021; Rackley et al., 2021). While legal responses tend to focus on punishing or holding accountable the perpetrator, scholars of TFVB find that many victims are more concerned with receiving support for their own healing (Dodge and Lockhart, 2022; Rackley et al., 2021). As Rackley et al. explain in the context of technology-facilitated sexual violence:

while many of the victim-survivors had engaged (with varying degrees of success) with the criminal justice process, it is clear that few saw this as the only—or indeed best—avenue for support and redress. Rather, what is clear from their responses is a desire to ‘reclaim control’ of their images, bodies, lives, relationships, careers, and physical and mental health. For many, this—rather than punishment of the perpetrator of the abuse—was their primary concern (Rackley et al., 2021: 20).

Echoing this finding, CyberScan agents explained that complainants are often seeking the comforting and validating experience of speaking with someone who has knowledge of TFVB and can reassure complainants that they are not alone, that the harm they experienced was real and is recognized as a social issue, and that there are supports available to help them heal (CS5). Thus, agents reported that emotional and informational support is the second most common response they provide.

As one agent described, it can be a powerful step in healing to have someone listen to your struggle without judgment and ensure you that you are not alone in this experience (CS5). This agent mentioned that, especially in cases of nonconsensual intimate image distribution, it can be healing for victims to simply hear that what happened to them was not their fault and that they don’t deserve to be blamed:

What I hear from a lot of complainants is that it was nice [. . .] just to hear that it’s not their fault. [. . .] so when we tell them you know ‘It’s not your fault, we get calls like this all the time,’ a lot of feedback I always hear is ‘It was so nice to just feel like I wasn’t judged, I just felt so stupid that I allowed this to happen, and just knowing that someone. . ..’ And I tell them, ‘Well, this is why this unit was actually created, because this has caused so many problems for people’ (CS5).

This comment demonstrates the importance of helping complainants to feel that they are not being victim blamed, something the formal justice system often fails to provide (Rackley et al., 2021), and helping them understand that what happened to them is part of a common, cultural problem of tech-facilitated harms rather than a personal failure (Dodge, 2016). CyberScan agents feel that their experience working in the unit makes them well positioned to comfort complainants as they can “provide understanding” of the types of harms being experienced and provide information on the supports that have been helpful for other complainants (CS5).

While in many cases agents provide emotional support in combination with the technological supports described above, in some cases emotional support is the sole support requested. As one agent described, complainants are sometimes dealing with online public shaming that is already widespread and, although little can be done to mitigate the spread, CyberScan can still provide emotional support: “[sometimes the complainant] is devastated you know, but later they will thank me and say, ‘even talking to someone who knows what it’s like and has that experience helped a lot’” (CS5). This finding demonstrates that victim supports for TFVB that are limited to do-it-yourself tech supports can fail to provide the healing aspect of speaking directly to a supportive person that can acknowledge and contextualize the harm experienced.

While CyberScan provides evidence of the importance of emotional support for complainants, their approach also has several shortcomings that are instructive for imagining what more holistic support for victims could look like. For example, agents described regularly dealing with complainants that “are very much in crisis” (CS1) and/or are experiencing technology-facilitated forms of domestic or sexual violence, yet they received no training for supporting those in distress or crisis or for understanding the particular needs of victims of domestic or sexual violence. If bodies providing supports do not receive this kind of training, they risk providing inadequate responses or even damaging responses, especially if they therefore engage in the kinds of victim blaming and shaming that some victims of TFVB have experienced when reporting to police (Eaton and McGlynn, 2020; Henry et al., 2018; Rackley et al., 2021).

CyberScan’s emotional supports also fall short due to their inaccessibility for young people. Although the CyberScan unit is regularly contacted by parents or educators who are a supporting a youth impacted by TFVB, the CyberScan unit reports that they are extremely rarely contacted by youth themselves. There seem to be several reasons for this, including that those under the age of 18 can only speak to CyberScan with the permission of their parent/guardian. This policy acts as a barrier for youth who do not have a trusting relationship with their caregivers or who know/fear that their caregivers hold discriminatory or victim blaming beliefs (Dodge and Lockhart, 2022). For instance, a youth who is being bullied over social media for being gay will likely not seek help if they are required to first explain the situation to their homophobic caregiver. Learning from these shortcoming, alternative bodies might ensure that young people can receive at least initial supports without permission from a parent/guardian. Another shortcoming is that CyberScan can only be contacted by phone, and many young people are increasingly uncomfortable making initial contact through a phone call; Therefore, alterative bodies could provide multiple options for contact (e.g. through live chat, email, instant messenger applications, anonymous online form, or text). Attention to the needs of youth and to complainants in crisis could help ensure that all those impacted can access support from someone who understands the dynamics of technology-facilitated harms and the best practices for supporting those impacted.

Warning & Educating Respondents

Many victims of TFVB are interested in options outside the legal system that help perpetrators to recognize the harms they are causing and to stop committing these harms (Dodge and Lockhart, 2022; Pennell et al., 2022; Rackley et al., 2021). As one of the victims in Rackley et al.’s study put it, “I wish that someone had sat him down and said ‘this is wrong’” (Rackley et al., 2021, p. 20). Attempting to meet this need, the CyberScan unit offers options to contact respondents to educate them about the harm their actions are causing and to warn them of potential legal implications when relevant. This option is the third most common response provided by CyberScan; However, it is only used in approximately 2% of cases⁷. Although this approach can be useful in some cases, CyberScan agents explain that it is only requested in the minority of cases because complainants often do “not want the respondent contacted for fear that it could actually escalate the situation and make it worse” or for other reasons such as believing the perpetrator is just “going through a hard time” and won’t continue their behavior long-term (CS7). In those rare cases where a respondent is contacted, CyberScan reports that simply warning or educating the respondent that the perpetration of technology-facilitated harms can have consequences is often enough to end ongoing acts of TFVB.

CyberScan is faced with many challenges when contacting respondents. Notably, agents working under the original Cyber-Safety Act (2013), that has since been replaced by the Intimate Images and Cyber-protection Act (2017), may have used warnings of potential legal consequences in a manner that unduly limited “legitimate Charter-protected speech” (Fraser, 2017). This highlights the challenge for creating alternative responses that strike the right balance between warning of potential legal consequences and respecting the rights and interests of respondents. Alternative bodies must also decide how to balance warnings of potential legal repercussions with education about the harms that respondents are causing. The restorative approaches experts interviewed for this research stressed that engagement with respondents should focus on expressing that their behavior is harming others rather than on the use of law as a scare tactic (RA1; RA2). That is, potential legal consequences should be framed as a last resort rather than as the reason not to commit harm. Some CyberScan agents already seem to focus on education about the harm caused rather than on the threat of legal actions: “[the goal of contacting the respondent was] to end [the cyberbullying] in a way that had the respondent taking responsibility for the damage they may have caused or at least an understanding or awareness of what they’ve done and how it impacted others” (CS3). However, in other cases, especially those involving clearly criminalizable acts, CyberScan agents may focus on legal warnings as their main tactic: “I love that [nonconsensual intimate image distribution] is a criminal offence because it makes my job a lot easier, because that is the threat I can kind of use I guess. . . to call the respondent and say ‘She is asking you to take this image down, this could be a criminal offence’” (CS5). Explaining the law to a respondent and asking them to remove nonconsensually shared intimate images can act as an expedient way to stop the harm of this act; However, those tasked with responding to these cases should consider, even in these clearly criminalizable cases, how to “convey to the perpetrator and others the full impact and harms of what had happened [. . .]” (Rackley et al., 2021: 21) through educational and restorative options that do not rely solely on legal warnings. CyberScan’s successes and shortcomings in this regard illustrate the importance of creating alternative responses that provide the option to educate wrongdoers about the harms they are causing and the potential legal consequences of their actions without requiring the engagement of police or other formal legal mechanisms.

Discussion & Conclusion

Scholars of TFVB have increasingly recognized the limits of legal responses and have highlighted the need for multiple tools and holistic supports to respond to technology-facilitated harms (Rackley et al., 2021; Shariff and DeMartini, 2015). CyberScan, despite its many limitations, offers an example of these kinds of alternative supports and responses in practice. Interviews with CyberScan agents echo growing findings that many people impacted by TFVB are uninterested in accessing legal recourse and are, rather, looking for access to informal supports to stop ongoing harms (e.g. through removing harmful posts), to help heal the impacts of harm (e.g. through speaking to someone that can provide understanding and support), and to help wrongdoers understand the harms they are causing (e.g. through educating respondents about the impacts of TFVB). Both CyberScan’s successes and shortcomings provide important guidance for best practices in responding to TFVB beyond the law.

In addition to the alternative responses described above, creating holistic responses to TFVB will also require alternative bodies to work to enact systems-level changes and to challenge the culture that normalizes TFVB. For instance, comprehensive educational initiatives⁸ could both challenge discriminatory beliefs related to TFVB, such as homophobic, racist, or sexist beliefs that often underly acts of TFVB (Henry et al., 2017; Mishna and Van Wert, 2015), and teach bystanders how to support victims or positively intervene in acts of TFVB (Albury et al., 2017; Lytle et al., 2021; Powell and Henry, 2017). As I argue elsewhere (Dodge, 2021a, 2021b), robust public education could be paired with an holistic restorative approach to address the myriad failures, on the part of individuals, community, culture, and systems, that create and invigorate the harms of TFVB. As described by one of the restorative approaches interviewees, a restorative approach could provide a variety of supports and services that are focused on understanding issues relationally and looking at holistic responses that consider the “context, causes, and circumstances” (RA2) that resulted in harmful acts or conflicts (Llewellyn et al., 2014; Stauffer and Shah, 2021). For instance, in response to nonconsensual intimate image distribution, a restorative approach could look to educate those in the victim’s life on the negative impacts of expressing victim blaming or shaming beliefs and seek to change discriminatory educational or organizational systems that are upholding these beliefs (Dodge, 2021b; Hamilton, 2018). Importantly, a restorative approach would allow for addressing the needs of all parties involved, which is especially vital in the context of technology-facilitated bullying in which perpetrators of bullying are often victims of bullying as well (Beran et al., 2015; Carlson and Frazer, 2021), and would allow for systems-level changes through the recognition in restorative approaches that “violence is simultaneously interpersonal and structural all of the time” (Stauffer and Shah, 2021: 2). Therefore, an educational and restorative response to TFVB would seek “accountability, reparations, and healing” (Stauffer and Shah, 2021: 18) while tending to the needs of all of those who have harmed or been harmed and learning from individual cases to change the social beliefs and systems that helped create or invigorate harm (For more on this See: Dodge, 2021b).

Due to the variety of acts included under the TFVB umbrella, holistically addressing and preventing TFVB and changing the culture that normalizes these acts will require nurturing connections with a network of systems, supports, and community partners; Including, for example, sexual health educators that can provide accurate and engaging consent education that addresses issues of technology-facilitated sexual violence; frontline service providers supporting communities most impacted by TFVB (e.g. LGBTQ+, racialized, and Indigenous communities); and services providing counseling to those who are at risk of committing intimate partner violence including in technology-facilitated forms. Any plan to tackle TFVB should not look to one singular agency, but should advocate for the adequate resourcing of a range of frontline services and community organizations that provide support, resources, and education in response to TFVB and overlapping issues of sexual violence, intimate partner violence, and discrimination against marginalized groups (Khoo, 2021).

Although new criminal and civil law options may lead some to believe that technology-facilitated harms are now adequately addressed, interviews with CyberScan agents demonstrate that legal responses rarely provide the expedient technological and emotional supports that many victims most desire and can even be counterproductive by bringing additional and extended attention to privacy violations and harmful content. While this article examined the efficacy of CyberScan from the perspective of agents, to further understand what changes are needed to holistically respond to TFVB future work should seek the additional perspectives of complainants and respondents who have interacted with bodies providing alternative responses. Based on the perspectives of those interviewed for this research and the relevant TFVB literature, I find that alternative bodies such as CyberScan provide vital supports that demonstrate the need for responses to TFVB that do not require engagement with the often biased, barriered, burdensome, and inflexible formal legal system.

Footnotes

Funding

The author received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Alexa Dodge

Notes

Author Biographies

Dr. Alexa Dodge is an Assistant Professor in Criminology at Saint Mary’s University in Halifax, Nova Scotia. She is currently researching informal, restorative, and legal responses to technology-facilitated violence and bullying.

References

Aikenhead

(2021) Revenge pornography and rape culture in Canada’s nonconsensual distribution case law. In: Bailey

Flynn

Henry

(eds) The Emerald International Handbook of Technology Facilitated Violence and Abuse. Emerald Publishing, pp.533–554.

Albury

Hasinoff

Senft

(2017) From media abstinence to media production: Sexting, young people and education. In: Allen

Rasmussen

(eds) The Palgrave Handbook of Sexuality Education. Palgrave Macmillan, pp.527–545.

Bailey

(2016) Canadian legal approaches to ‘cyberbullying’ and cyberviolence: An overview. Ottawa Faculty of Law Working Paper 37. SSRN, pp. 1–49.

Bailey

Henry

Flynn

(2021) Technology-facilitated violence and abuse: International perspectives and experience. In: Bailey

Henry

Flynn

(eds) The Emerald International Handbook of Technology-Facilitated Violence and Abuse. Emerald Publishing, pp. 1–17.

Bailey

Liliefeldt

(2021) Calling all stakeholders: An intersectoral dialogue about collaborating to end tech-facilitated violence and abuse. In: Bailey

Flynn

Henry

(eds) The Emerald International Handbook of Technology Facilitated Violence and Abuse. Emerald Publishing, pp.769–786.

Bailey

Mathen

(2019) Technology-facilitated violence against women and girls: Assessing the Canadian criminal law response. The Canadian Bar Review 97(3): 664–696.

Beran

Mishna

McInroy

, et al. (2015) Children’s experiences of cyberbullying: A Canadian national study. Children & Schools 37(4): 207–214.

Bringer

Johnston

Brackenridge

(2006) Using computer-assisted qualitative data analysis software to develop a grounded theory project. Field Methods 18(3): 245–266.

Caletti

(2021) Can affirmative consent save “revenge porn” laws? Lessons from the Italian criminalization of non-consensual pornography. Virginia Journal of Law and Technology 25(3): 112–174.

10.

Carlson

Frazer

(2021) Attending to difference in Indigenous people’s experiences of cyberbullying: Toward a research agenda. In: Bailey

Flynn

Henry

(eds) The Emerald International Handbook of Technology-Facilitated Violence and Abuse. Emerald Publishing, pp.145–166.

11.

Choo

(2015) Why we are still searching for solutions to cyberbullying: An analysis of the North American responses to cyberbullying under the theory of systemic desensitization. University of New Brunswick Law Journal 66: 52–77.

12.

Citron

Franks

(2014) Criminalizing revenge porn. Wake Forest Law Review 49: 345–391.

13.

Cyber-safety Act, 2013 (SNS) c 2.Dobson

(2019) ‘The things you didn’t do’: Gender, slut-shaming, and the need to address sexual harassment in narrative resources responding to sexting and cyberbullying. In: Vandebosch

Green

(eds) Narratives in Research and Interventions on Cyberbullying Among Young People. Springer, pp.147–160.

14.

Dodge

(2016) Digitizing rape culture: Online sexual violence and the power of the digital photograph. Crime Media Culture 12(1): 65–82.

15.

Dodge

(2021a) Deleting digital harm: A review of Nova Scotia’s CyberScan unit. Report, Dalhousie University, Halifax. Available at: http://www.vawlearningnetwork.ca/docs/CyberScan-Report.pdf(accessed 10 November 2022).

16.

Dodge

(2021b) Restorative responses to the rhizomatic harm of nonconsensual pornography. In: Powell

Flynn

Sugiura

(eds) The Palgrave Handbook of Gendered Violence and Technology. Palgrave, pp.565–582.

17.

Dodge

Lockhart

(2022) “Young people just resolve it in their own group”: Young people’s perspectives on responses to nonconsensual intimate image distribution. Youth Justice 22: 304–319.

18.

Dunn

(2021) Is it actually violence? Framing technology-facilitated abuse as violence. In: Bailey

Henry

Flynn

(eds) The Emerald International Handbook of Technology-Facilitated Violence and Abuse. Emerald Publishing, pp.30–45.

19.

Eaton

McGlynn

(2020) The psychology of nonconsensual porn: Understanding and addressing a growing form of sexual violence. Policy Insights from the Behavioral and Brain Sciences 7(2): 190–197.

20.

Flynn

(2021) Responses beyond law: Introduction. In: Bailey

Flynn

Henry

(eds) The Emerald International Handbook of Technology Facilitated Violence and Abuse. Emerald Publishing, pp.619–622.

21.

Flynn

Henry

(2021) Image-based sexual abuse: An Australian reflection. Women & Criminal Justice 31(4): 313–326.

22.

Fraser

(2017) Letter to Nova Scotia Legislature, Law Amendments Committee. Available at: https://nslegislature.ca/sites/default/files/pdfs/committees/63_1_LACSubmissions/20171023/20171023-027-003.pdf (accessed 1 September 2022).

23.

Hamilton

(2018) Is justice best served cold?: A transformative approach to revenge porn. UCLA Women’s Law Journal 25(1): 1–44.

24.

Henry

Flynn

Powell

(2018) Policing image-based sexual abuse: Stakeholder perspectives. Police Practice and Research 19(6): 565–581.

25.

Henry

Flynn

Powell

(2020) Technology-facilitated domestic and sexual violence: A review. Violence Against Women 26(15–16): 1828–1854.

26.

Henry

Powell

Flynn

(2017) Not just ‘revenge pornography’: Australians’ experiences of image-based abuse. Summary Report, RMIT University, Melbourne.

27.

Henry

Witt

(2021) Governing image-based sexual abuse: Digital platform policies, tools, and practices. In: Bailey

Flynn

Henry

(eds) The Emerald International Handbook of Technology Facilitated Violence and Abuse. Emerald Publishing, pp.749–768.

28.

Hrick

(2021) The potential of centralized and statutorily empowered bodies to advance a survivor-centered approach to technology-facilitated violence against women. In: Bailey

Flynn

Henry

(eds) The Emerald International Handbook of Technology Facilitated Violence and Abuse. Emerald Publishing, pp.595–618.

29.

Intimate Images and Cyber-protection Act, 2017 (SNS), c 7.

30.

Jane

(2017) Gendered cyberhate, victim-blaming, and why the internet is more like driving a car on a road than being naked in the snow. In: Martellozzo

Jane

(eds) Cybercrime and Its Victims. Routledge, pp.61–78.

31.

Khoo

(2021) Deplatforming misogyny: Report on platform liability for technology-facilitated gender-based violence. Report, LEAF, Toronto.

32.

Llewellyn

Archibald

Clairmont

, et al. (2014) Imagining success for a restorative approach to justice: Implications for measurement and evaluation. Dalhousie Law Journal 36(2): 281–316.

33.

Louie

(2021) Technology-facilitated domestic abuse and culturally and linguistically diverse women in Victoria, Australia. In: Bailey

Flynn

Henry

(eds) The Emerald International Handbook of Technology Facilitated Violence and Abuse. Emerald Publishing, pp.447–470.

34.

Lytle

Bratton

Hudson

(2021) Bystander apathy and intervention in the era of social media. In: Bailey

Flynn

Henry

(eds) The Emerald International Handbook of Technology Facilitated Violence and Abuse. Emerald Publishing, pp.711–728.

35.

Marwick

Boyd

(2014) ‘It’s just drama’: Teen perspectives on conflict and aggression in a networked era. Journal of Youth Studies 17(9): 1187–1204.

36.

Mathen

(2022) Regulating expression on social media. In: Macfarlane

(ed) Dilemmas of Free Expression. University of Toronto Press, pp.91–110.

37.

Mishna

Van Wert

(2015) Bullying in Canada. Oxford University Press.

38.

Pennell

Campbell

Tangen

, et al. (2022) Should Australia have a law against cyberbullying? Problematising the murky legal environment of cyberbullying from perspectives within schools. The Australian Educational Researcher 49: 827–844.

39.

Powell

Henry

(2017) Sexual Violence in a Digital Age. Palgrave Macmillan.

40.

Powell

Scott

Flynn

, et al. (2020) Image-based sexual abuse: An international study of victims and perpetrators. Summary Report, RMIT University, Melbourne.

41.

Rackley

McGlynn

Johnson

, et al. (2021) Seeking justice and redress for victim-survivors of image-based sexual abuse. Feminist Legal Studies 29(3): 293–322.

42.

Segal

(2015) Independent review of the police and prosecution response to the Rehtaeh Parsons case. Progress Report, Murray D. Segal Professional Corporation, Toronto.

43.

Shariff

DeMartini

(2015) Defining the legal lines: eGirls and intimate images. In: Bailey

Steeves

(eds) EGirls, ECitizens. University of Ottawa Press, pp.281–305.

44.

Stauffer

Shah

(2021) Restorative justice:taking the pulse of a movement. In: Lewis

Stauffer

(eds) Listening to the Movement: Essays on New Growth and New Challenges in Restorative Justice. Cascade Books, pp.xv–xxxiii.

45.

Stevenson-McCabe

Chisala-Tempelhoff

(2021) Image-based sexual abuse: A comparative analysis of criminal law approaches in Scotland and Malawi. In: Bailey

Flynn

Henry

(eds) The Emerald International Handbook of Technology Facilitated Violence and Abuse. Emerald Publishing, pp.513–533.

46.

Yar

Drew

(2019) Image-based abuse, non-consensual pornography, revenge porn: A study of criminalization and crime prevention in Australia and England and Wales. International Journal of Cyber Criminology 13(2): 578–594.

47.

Young

Laidlaw

(2020) Creating a revenge porn tort for Canada. Supreme Court Law Review 2(96): 147–187.

Looking beyond the law to respond to technology-facilitated violence and bullying: Lessons learned from Nova Scotia’s CyberScan unit

Abstract

Keywords

Introduction

Methodology

The need for alternative responses to TFVB

Alternative Responses & Supports in Practice: A Case Study of the CyberScan Unit

Disinterest in Legal Avenues

Technological Support

Emotional & Informational Support

Warning & Educating Respondents

Discussion & Conclusion

Footnotes

Funding

ORCID iD

Notes

Author Biographies

References