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ADL Recommendations to OSCE to Address Hate Crimes Motivated by Internet Hate

ADL submitted the following recommendations to the Organization for Security and Cooperation in Europe's (OSCE) Office for Democratic Institutions and Human Rights (ODIHR) to address hate crimes motivated by hate on the Internet.  The recommendations were presented at ODIHR's conference in Warsaw, Poland, March 22, 2010.

Posted: March 19, 2010

Recommendations to OSCE Office for Democratic Institutions and Human Rights to Address Hate Crimes Motivated by Hate on the Internet. 

 

March 22, 2010

                                               

The Anti-Defamation League (ADL) is proud to be part of the ongoing and dynamic international conversation this organization has catalyzed about responding to hate crime.   We are pleased to participate in this expert forum on how to address hate crimes motivated by hate on the Internet.  The League welcomes the opportunity to lend its experience and to learn from others developing proactive strategies to address this disturbing and growing trend across the globe.  We come to offer some lessons from ADL's comprehensive approach to addressing prejudice, hate, and cyberbullying among youth as a paradigm for how communities and officials can partner to craft a response.

 

ADL's approach to addressing bullying online is, indeed, to address the issue of bullying comprehensively.  It is the behavior of bias and intolerance that must be tackled, while the skills to deal with this new medium of the Internet must also be learned.  Further, while laws and appropriate school-based policies are a focal point for any model dealing with bullying, education strategies, training programs, and community involvement are necessary complements to any effective response. 

 

ADL is a proud advocate for preserving Freedom of Expression.  We understand that our own First Amendment of the U.S. Constitution is unique – and sometimes frustrating for others whose legal frameworks allow for more government restrictions of speech, particularly with regard to content on the Internet.  We have worked with many groups represented here on the shared goal of fighting hate speech and we have been gratified by our ability to forge common approaches in many instances -- without compromising our commitment to preserve freedom of speech.

 

But even in the U.S., the right to free speech is not absolute.  U.S. courts have struck a balance between Constitutional rights and protecting society from harm – for example, in cases of speech that intimidates, threatens or defames, in addition to certain student expression.  Indeed, school children do have constitutional rights, but those rights are limited. 

 

As discussed below, U.S. courts have struck a balance between free expression and the protection for the safety of students, which leaves "legal legroom" for communities to engage our youth and schools in proactive strategies to combat bullying and hate online and promote a civil electronic discourse.  Hopefully, working together with all of you, we can develop similar strategies at the international level to combat bullying, bigotry and hate.

 

APPROACH TO ADDRESSING CYBERBULLYING:

FOCUS ON POLICY, TRAINING AND AWARENESS

& WORK COMPREHENSIVELY IN SCHOOLS

 

About Cyberbullying

 

To most adults, the Internet is a wondrous "new and current" tool.  To our children, however, the Internet as a form of communication is an indisputable norm, as natural as breathing.   Most young people today consider e-mailing, text messaging, chatting and blogging a vital means of self-expression and a central part of their social lives.  While the Internet brings substantial value to our youth, both socially and educationally, it can also bring trouble.   An increasing number of youth are misusing online technology to bully, harass and even incite violence against others.  Such willful and repeated harm inflicted through electronic media which interferes with a student's education opportunities or substantially disrupts the orderly operation of the school has become known as "cyberbullying."  

 

Cyberbullying may appear in a number of places –- including, e-mails, text messages on cell phones, pictures, social networking sites, independent web sites, discussion groups, and blogs.  Cyberbullying can take a number of forms: online fights with vulgar language; repeatedly sending offensive and insulting messages; posting cruel gossip to damage his or her reputation; breaking into someone's account to pose as them; among others.

 

As opposed to traditional "school-yard" bullying, bullying through modern communication technology can be more pervasive and invasive in nature:  electronic messages can be circulated far and wide in an instant, and are usually irrevocable; cyberbullying is ubiquitous.  Further, cyberbullying is often anonymous and can rapidly swell as countless and unknown others join in on "the fun" without feeling empathy for the target.

 

ADL has developed a comprehensive approach and advocacy toolkit to combat cyberbullying, which includes strategies that can be effective against severe hate and bigotry in other parts of the OSCE Region.  Many of the strategies are school-based, because it is often the schools who are ultimately involved in a cyberbullying incident.  Schools are where the targets and perpetrators encounter each other.  The approach we propose considers legal limitations, and education needs, and puts forward sample policy measures and community response initiatives.

 

Understanding the Legal Limitations

 

There are a number of legal limitations on school administrators when considering ways to treat an incident of cyberbullying.   Public schools are considered state actors, and are therefore limited accordingly.  When determining how to respond to an incident of cyberbullying, schools must take into account the sometimes competing objectives of safeguarding students' right to free expression, the right to privacy, the duty to provide a safe learning environment, and the duty to abide by civil rights laws that prevent discrimination.

 

In our country, students in a public school environment enjoy constitutional protections, but those protections are limited.[1]  In the 1969 case Tinker v. Des Moines, the U.S. Supreme Court set the bright-line standard for balancing student expression with the right of a school to punish speech.  The Court held that a school can restrict speech if causes "substantial and material" disruption of an educational objective or interferes with another student's rights.  Courts around the U.S. have used this "Tinker standard" as a means of permitting schools to prohibit bullying and cyberbullying that "substantially and materially" disrupts the school's mission. 

 

The application of the Tinker standard has been challenged most recently, and most often on incidents involving a schools that discipline students for cyberbullying another student, when the perpetrator's expression was created off of the physical school campus (i.e., from a personal computer at home.)  The U.S. courts are currently grappling with this issue, but more and more are considering school action constitutional if there is a nexus between the off-campus expression and the effect it is having on the school campus.

 

A school must also consider a student's privacy rights.  The government is prohibited from searching someone's property unless there is probable cause to suspect unlawful activity.  In a school setting, however, the government needs only "reasonable suspicion" of illegal activity to search a student's property.  This standard allows for more leniency in searching cell phones and computers.

 

On the other hand, schools must consider the rights of the students being bullied, as well.  Schools have a duty of care towards students, and in a very recent case, a school was ordered to pay $800,000 in damages to a student who claimed the school did not do enough to protect him from years of bullying.  Schools may also be subject to civil rights statutes if the bullying is motivated by a student's race, religion, ethnicity or gender.

 

Finally, there may be criminal issues in play.  As mentioned above, not all expression is protected – such as intimidation and threats.  Further, if one of these crimes is motivated by a certain personal or immutable characteristic of the victim, the incident may be a hate crime.  Schools must be equipped to reach out to appropriate authorities if such crimes are suspected.

 

These legal limitations must be taken into account when considering strategies and recommendations for action with regard to bullying or any other incidents of hate.

 

Recommendation:  Enact Bullying and Cyberbullying Prevention Policies that Are Both Proactive and Responsive and that Engage the Community to Action

 

National and local education authorities should adopt bullying prevention policies.  The policies should entail disciplinary measures, in addition to proactive measures to combat and deter future incidents.   Adopting these policies serves a number of purposes:

 

·        Discussions about the policies will force communities to address the issue.

 

·        Adopting policies lets the community know that the government is taking the issue seriously.

 

·        The policy will hold communities accountable for unacceptable behaviors.

 

A strong bullying prevention policy will:

 

·        Prohibit bullying.  It will also include a clear definition of "bullying"-- specifically including bullying through electronic communication -- so that students and the community know exactly what is and what is not acceptable.

 

·        Involve government officials, school districts, parents, teachers, students, school volunteers, law enforcement officials and community members in developing the policy.

 

·        Create specific avenues for students and teachers to report incidents of bullying safely. 

 

·        Require that explicit notice to parents and students of the prohibition on bullying and on the avenues for reporting incidents.

 

·        Provide counseling services for victims of bullying.

 

·        Require schools to report on bullying activity to a governmental authority, so that there is awareness and accountability;

 

·        Require training about bullying and cyberbullying for teachers and students;

 

·        Explicitly prohibit bullying with enumerated categories -- race, religion, national origin, gender, sexual orientation, disability or another identifiable characteristic.  Specifically naming the categories will remove all doubt that anti-Semitic bullying, or anti-gay bullying, or bullying of other specifically targeted groups is included within the prohibitions.  It also underscores that hatred based on bigotry and stereotypes affect communities in a unique way and will not be tolerated.

 

Recommendation:  Institute Education and Training for Teachers, Parents, and Students to Address New Issues Related to Bullying, Bias and Responsible Online Activity

 

Despite the prevalence and impact of cyberbullying, many adults are unaware of the problem due to a lack of fluency in new technologies, limited involvement in and oversight of youth online activity, and strong social norms among youth against disclosure of online behavior.  That is why it is critical to develop programming for teachers and parents on how to recognize and respond to cyberbullying.   It is also imperative that communities know how to respond when an incident of bullying does arise.  There is a lot of misunderstanding about harassment, the right to free-speech on the Internet (discussed below) and when "kids will be kids" goes too far.

 

It is also imperative that students learn at a young age how to think critically about Internet communication and how to respond constructively to hateful messages.  We teach our children how to be safe when walking through a potentially bad neighborhood.  We teach our children to behave a certain way when engaging in public discourse.  In this "new-to-adults" environment of the Internet, we must teach our children how to be safe when walking through their virtual neighborhoods. 

 

We also must promote civil discourse online - as well as offline - and must teach youth how to identify risks and engage in critical thinking rather than impulsive action.  It is vital that students be trained on how to use electronic communications in a responsible manner, on how to develop empathy for others, and how to intervene safely and not be a bystander when others bully. 

 

Recommendation:  Empower All Members Across the Community to Engage in Response

 

Finally, we must empower individual Internet users to engage in the global dialogue about cyberbullying and cyberhate and work together to create an environment where civil discourse conquers hate.  Below are some critical steps that individual users can take to change the course of dialogue on the Internet.  It is critical that we teach parents, teachers, students and other community members how to responsibly engage in these activities:

 

·        Flag.  Many sites allow users to flag offensive content for review.

 

·        Applaud. Reinforce positive anti-hateful content by posting positive messages. 

 

·        Talk. Talk to friends, teachers, or family about what you've seen.

 

·        Know the community with which you are dealing.  Look for a site's Terms of Service and find out about the kind of site the company wants to run.

 

 

ENGAGE THE BROADER COMMUNITY IN THE FIGHT AGAINST HATE

 

While the strategies used to combat cyerbullying can teach lessons for combating the broader issue of cyberhate, schools and students do not bear the entire onus to address this issue.  It is of the utmost importance to have a constant and civil dialogue from various facets of society to play a role. 

 

Recommendation:  Industry and Consumers Should Partner to Identify Ways to Collaborate and Promote a Civil Discourse

 

As consumers and members of the Internet, it is our responsibility to work with the industry on ways to minimize the dangers and risks of cyberhate.  We recommend that Internet consumers commit to helping those in the industry understand what is and what is not problematic content, by engaging in positive responses as mentioned above.

 

We recommend to the industry to be responsive to this process.  Understand the laws as they relate to cyberbullying, hate crimes and cyberhate, and work with youth where possible.  Further, decide what kind of environment you would like to foster on your website.  We recommend Internet providers must clearly define prohibited hate speech and prohibit the use of hate in any Terms of Service agreement.  A responsible Web site will establish clear, user-friendly reporting mechanisms for reporting hateful content and will act quickly to remove or sequester hateful content once it is reported.   That's not censorship; it's compliance with the Internet Service Provider's Terms of Service.

 

Recommendation:  Governments Leaders and Public Figures Must Continue to Condemn Bigotry and Violence Motivated by Bias Whenever and Wherever it Arises

 

As always, in order to combat hate online, we need the cooperation of communities in the fight against hate.  It is hard to overstate the importance of public officials and law enforcement authorities willing to speak out against hate and discrimination.  That leadership helps nurture a climate and a culture in which other members of the community are willing to condemn bigotry and combat the effects of hate online.  Efforts to advocate for strong hate crimes laws, comprehensive hate crime data collection, and better understanding in communities on this issue are a vital part of this dialogue.

 

We know that the civil society representatives actively participating in ODIHR's work are committed to eradicating hatred, bigotry, and bias-motivated violence.  In order to fight hate on the Internet, we must stand up together to condemn all acts of hate, and particularly violent acts.  We must be active not only in our home countries, but as a group against such hate – because hate does not respect national borders.  

We urge those in public office to use their bully pulpit to loudly condemn all acts of bigotry, racism and anti-Semitism, whenever they appear.

 

Just a few months ago, ADL called a report on hate crime across the 56 participating states of OSCE "a revealing portrait of the failure of too many governments to recognize the unique problem of hate crime."  We continue to urge governments to take seriously the issue of data collection of hate crimes, and to move past the fear of quantifying this problem of hate.  Until a community knows the scope of an issue, it cannot begin to launch its policy, education, prevention and response measures.  When there is awareness, action is more likely to follow.

 

Governments and law enforcement agencies must take affirmative steps to let communities know they take this issue seriously, and are serious about fighting violent bigotry.  The first step is to acknowledge and condemn hate crimes whenever they occur, and the second step is to enact laws to address such crimes – online and off.  We recognize that law enforcement agencies may not always share our concerns about hate expressed against particular groups.  Under such circumstances, the challenge for civil society is greater, because such agencies must be educated as to the dangers of such hate to a community first.  In such situations, persistence is vital, and personal stories of the harm online hate can cause may be especially helpful. 

 



[1] Tinker v. Des Moines 393 U.S. 503 (1969), Bethel v. Fraser 478 U.S. 675 (1986), Morse v. Frederick 478 U.S. 675 (1986)

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