Virtual is real: Attempts to legally frame technology-related violence in a decentralized universe

For the past couple of decades, we have been witnessed major restructurings of our social environments, relationships, and our sense of the self, of the community/nation and of the space-time framework. More, as new computer and media technologies spread across the globe, the restructuring of social arenas and social performances continues.

The internet and virtual reality have blurred many boundaries not only of space and time, private and public, masculine and feminine, adult and child, but also between the self and the Other, between interiority and exteriority. As Meyrowitz wrote in his book No Sense of Place, “territory was once directly related to authority… because territorial control once allowed for control over information within one’s territory…” [1] Now, the internet and cyberspace directly bypass the relationship between territoriality and authority, since control over information in the decentralized universe is unattainable. While this phenomenon points to the democratic potential of the internet, it also brings into question other issues, among which is online violence and its expression, such as cyberstalking, cyberbulling and/or psychological cyber harassment.

When human rights [2] are put in danger in cyberspace – as, for example in the case of Leandra Ramm in 2005, the legal body often finds itself on shaky ground, incapable of protecting the victim/ survivor. (Note: It is a big question, today whether human rights are being respected even where there exists legislation to protect them!) One reason for that is, as Mark Poster wrote, a lot of ICT laws and amendments end up “flying in the face of the advance in the technologies of transmission and dissemination.” [3] What happens in many cases is that victims/survivors are denied justice, and as a result, it is not surprising that very little of them have confidence that the legal system will protect them.

People in cyberspace, including perpetrators, are nomadic. Their online ‘survival’ depends on the constant transition from one state/identity to another. Thus, prosecuting cyberstalking and tech-related VAW cases is a difficult task, especially when they happen across borders (as in Ramm’s case) – in countries that have different, if any, harassment laws or laws on cyberstalking.

In addition, research that has been done in the EU that reveals that three quarters of women did not report the crime to the police, even in the most serious cases.

The legal system started recognizing and addressing harassment and stalking as crimes 15 years ago, while the first cases of online threats occurred almost 20 years ago.

Thus, technology-related harassment has become a persistent problem across all virtual platforms. One influential international body that has been working on the issues of online hate is The Task Force on Cyber Hate. They work with government officials, industry representatives, academics and activists to discuss the best way to challenge the online hate and abuse. Professor Danielle Citron, who serves on the Task Force, recently published Hate Crimes in Cyberspace giving a systematic account of the problem, and how to address it. The publication reveals the serious emotional, professional, and financial harms incurred by survivors.

There has been some progress made for victims of cyberstalking. In Europe, there is the Istanbul Convention, which introduces the offense of stalking across all countries that ratify it. As yet, this comes to 14 countries.

Four recently introduced pieces of legislation that address tech-related violence against women (VAW), and try to challenge online harassment, and protect victims are: the Cyber Bully Act in South Africa or the Harassment Act 2010, Nova Scotia, Canada: Cyber Safety Act 2013, California, USA SB 225 Electronic Communication Prohibited Distribution of Personal Information Law, and New Zealand’s Harmful Digital Communications Bill 2013. All of them present the continuing efforts of these governments to challenge the increasing problem of tech-related violence at the domestic level.

The Association for Progressive Communications (APC) conducted a research into ICT related VAW laws [4] as part of the project “End violence: Women’s rights and safety online” in seven other countries: Bosnia and Herzegovina, Colombia, Democratic Republic of Congo (DRC), Kenya, Mexico, Pakistan and Philippines [5]. The research reveals that only Colombia, Mexico and Philippines have special laws on VAW, while Bosnia and Herzegovina, DRC, Pakistan and Kenya have provisions relating to VAW in penal codes.

Legislation in the USA, New Zealand, South Africa and Canada clearly represent new approaches to combating virtual violence. What all have in common is the recognition that cyber harassment causes emotional distress and each allows the victim to achieve concrete redress.

In the seven countries under the APC research project, only two, the Philippines and Kenya, have recognized technology/ICT-related offenses in their laws, but none have laws explicitly addressing technology/ICT-related VAW as a crime.

The South African Act, Nova Scotian Act and New Zealand Bill reflect the increasing necessity of the involvement of internet and communications intermediaries, that is electronic services providers, in preventing and rectifying online violence and cyber harassment. The legislation makes the industry representatives responsible for providing information about the identity of the perpetrator, canceling services upon the order of a court, and removing content considered offensive.

Three acts (California, Nova Scotia and New Zealand) have possible implications for freedom of speech. The case of New Zealand is the most interesting because it seeks to “civilize” online communications by preventing obscene and offensive expression. In response to this last act, the digital rights organization Tech Liberty submitted its concern arguing for absurdity of the distinction between online and offline communications when it comes to “serious emotional harm”. With this they raised interesting issues, but their further characterization of “cruelty” as “inherent to being human” did not really clarify the problem at stake.

The encounters that survivors experience are psychologically intensified processes directly affecting survivors’ bodies and causing harm on many levels. They simply cannot be dismissed as the result of natural human behaviour.

Among other issues brought by critics and relevant to the legislation is the need for public education. Legislation itself will not solve the problem of VAW in digital spaces, so critics suggest that any legal changes should be accompanied by educational campaigns on the gendered nature of harm in digital spaces. In this process, and generally in the process of creating legislation that deals with cyber harassment, input from women’s organizations is needed. So far, this has not been the case, which again can create additional obstacles to effective measures in combating online VAW. Few things that stand out as affirmative starting points for other legislatures working on redefining and amending legal frameworks to make them more accessible to complaints are: consultative process (such as in South Africa), amending the existing legal framework instead of creating new laws, focus on redress over criminalization (the use of protection orders), establishing units/agencies for investigating complaints, and the work of public advocacy groups.

While much has been done legally on both domestic and international levels to combat tech-related violence against women, advocates and supporters must continue to battle, especially through learning, educating, and advocating for change. Research needs to be done in documenting the myriad ways in which victims can creatively use technology to enhance their safety. Parallel to this, it is urgent to expand our understanding of what survivors are experiencing, so we can be more productive in informing the systemic change needed to address this issue.

Apart from that, humans continue to prove that they have hard time relinquishing their own reactive consciousness, which is at the core of any and every violent act. If we do not wake up and shake off the old habits of understanding the world (i.e. by problematizing the continuing intellectual dominance of the Enlightenment orthodoxies of reason, knowledge and truth) and stop subordinating differences to the conceptual form of the identical, the current gloomy trajectory may head into the worst science-fiction dystopian films. As Carl Sagan once wrote, we created technologies that will take us to the stars, unless in some monstrous capitulation to stupidity and greed we destroy ourselves first.

To read the full research in which this article draws on, click here

Image by Will Lion used under Creative Commons license.