Melissa Luhtanen J.D.

About Melissa Luhtanen J.D.

Melissa Luhtanen J.D., is a lawyer and human rights educator at the Alberta Civil Liberties Research Centre in Calgary, Alberta.

Supporting Transgender People in the Workplace

January 4, 2017 By Melissa Luhtanen J.D.

The Alberta Human Rights Act (Act), RSA 2000, c. A-25.5, protects people from discrimination in employment based on gender identity and gender expression under section 7 of the AHR Act:

7 (1) No employer shall

(a) refuse to employ or refuse to continue to employ any person, or

(b) discriminate against any person with regard to employment or any term or condition of employment,

because of the …gender identity, gender expression … of that person or of any other person.

For a transgender person who is coming out within the workplace, there will come a time where colleagues and staff need to be informed or find out. What are the responsibilities of employers regarding gender identity in the workplace? While there is no definition of “gender identity” in the Act, it is generally understood to include transgender and transsexual people, and may over time develop in law to include non-binary genders. The Alberta Human Rights Commission has indeed accepted complaints from transgender people for a number of years under the ground of “gender,” but it was in 2015 that the Alberta Human Rights Amendment Act (Bill 7) officially added in the words “gender identity” to protect transgender people. Alberta Hansard, December 1, 2015 includes a good explanation and one definition that may be useful in understanding what these terms mean:

The key to understanding what transgender means is understanding the difference between sex and gender. Sex refers to the physical characteristics that are associated with being male or female, including primary sex characteristics such as genitals and secondary sex characteristics such as breasts. Gender refers to the social presentation of masculinity and femininity. Many cultures have strict rules about how to perform masculinity and femininity. Rigid masculine and feminine gender roles are referred to as the gender binary. However, ideas about gender are not static. They change across time and place, within one society, and between different cultures.

Some workplaces are incorporating unisex washrooms or single stall washrooms that address not only the need for gender-neutral spaces, but also accessibility and privacy. Transgender individuals do not identify with the sex that they were assigned at birth and present their gender in a way that reflects their true selves. Some transgender persons choose to have gender-affirming surgery so that their physical characteristics reflect their gender identity, and some do not. Gender identity does not relate to sexual orientation. Transgender and gender-variant people may identify as straight, gay, lesbian, bisexual, pansexual, or any other sexual orientation.

Under the Act, transgender people are protected from discrimination and harassment, not only in employment, but also in publications, services, tenancy, and unions. Employers must protect against discrimination and harassment based on gender identity. For instance, an employer may provide an education session to its employees to ensure that there is no discrimination or harassment on any ground, including for a transgender person who is coming out. Supervisors should be made aware that hiring and promotions should not take gender identity into account. An employer must also accept and properly investigate complaints from a transgender employee that his/her human rights have been violated. If the employer finds that there has been harassment or some other form of discrimination in the workplace, it should take appropriate steps to remedy the discrimination, such as reprimanding or suspending the offender, or changing a discriminatory policy.

Employers may want to review their own human rights policies to update them and include the new grounds of gender identity and gender expression, as well as the other 13 grounds (i.e., sexual orientation, race, etc.) that are in the Act. However, even if an employer’s own policy does not include gender identity or any other ground, an employer, in Alberta, is still legally bound by the provisions of the Act.

..a transgender person who needs time-off work for medical reasons, such as surgery or recovery from surgery should be treated the same as any other employee needing accommodation for a medical issue. For instance, a transgender person who needs time-off work for medical reasons, such as surgery or recovery from surgery should be treated the same as any other employee needing accommodation for a medical issue. Sometimes, accommodating an employee will involve increased costs to the employer. The employer has a duty to accommodate an employee to the point of “undue hardship”. The Alberta Human Rights Commission has more information on the general duty to accommodate on its website: www.albertahumanrights.ab.ca. (“Employment: Duty to Accommodate” Online: Alberta Human Rights Commission)

Employees also have duties regarding accommodation, such as:

informing the employer of the need for an accommodation;
a doctor’s note for medical issues;
discussing potential accommodations that would work for both the employer and employee; and
keeping the employer informed of accommodations that are not working.

Revealing gender identity to other employees

For a transgender person who is coming out within the workplace, there will come a time where colleagues and staff need to be informed or find out. Involving the transgender employee in a discussion of how to do this respectfully and effectively is the best way to address this process. The employer must be cautious not to release medical information or private information to general employees or others who do not need to know this information. Many transgender people have successfully come out at work, and continued to stay in the same workplace.

Employers must protect against discrimination and harassment based on gender identity. A transgender person has no obligation to reveal to the employer that they are considering coming out. Once the employee begins to make plans, such as having surgeries that will involve absences from work, the employee must then inform the employer of a need for accommodation. Both employer and employee are wise to get medical documentation to support any needed medical leaves of absence. Coming out as a transgender man or woman involves many emotional and physical stages. An employee who does not share private information with an employer immediately is not being untruthful, but is simply protecting his or her privacy until the need arises to have an honest discussion or request an accommodation.

Bathrooms in the workplace

It is not only a legal responsibility, but also a respectful practice to protect employees’ rights to privacy. A transgender employee will use the bathroom that corresponds with his or her identified gender. There have been some cases (see: Ferris v Office and Technical Employees Union, Local 15, [1999] BCHRTD No 55. Sheridan v Sanctuary Investments Ltd, [1999] BCHRTD No 43), that have addressed the use of gendered washrooms. These cases have notably said that using the appropriate washroom is “significant” in the identity of a transgender person. Refusing to protect an employee’s rights regarding the use of a washroom that matches his/her gender identity has been found to be discriminatory.

Some workplaces are incorporating unisex washrooms or single stall washrooms that address not only the need for gender-neutral spaces, but also accessibility and privacy. For instance, employers can design a bathroom that has a series of single-stall washrooms, each with floor to ceiling walls, and a common gender-neutral sink area.

Respecting employee privacy

The key to understanding what transgender means is understanding the difference between sex and gender.It is not only a legal responsibility, but also a respectful practice to protect employees’ rights to privacy. This will mean keeping the gender that is marked on an employee’s identity documents private if it does not match the person’s presenting identity (i.e., when the person’s documents say male, but she is female and presenting as such in the workplace). Other documents may also reveal a person’s gender, such as police record checks and other background checks.

There are some very real hurdles involved in amending one’s gender on identity documents. These are beyond the scope of this article, but more information can be found under sections 16.1 to 16.5 of the Vital Statistics Information Regulation, AR 3/2012. Protecting the privacy of a transgender employee by not revealing the gender shown on incorrect documents promotes a positive work environment, recognizes that the law is evolving and acknowledges that it takes time to amend identity documents.

While the law is still developing in the area of human rights and transgender status, employers will be well positioned for the future when they work to combat discrimination and harassment against any and all employees.

Amended version based upon the original tri-fold: Employer’s Guide: Transgender people in the workplace, Alberta Civil Liberties Research Centre.

Transgender youth: Everyday items, everyday rights

March 8, 2015 By Melissa Luhtanen J.D.

The public bathroom can be a major source of anxiety for transgender youth. Using a public restroom may result in their status being discovered. If they identify as transgender and have not yet revealed their identity, they may feel like an imposter. Worse yet, trans teens may be subject to ridicule, abuse or assault, physical or sexual, in public lavatories. Issues concerning use of the restroom may be the first notice that a school receives that a child is transgender.

– Which Way to the Restroom? Respecting the rights of transgender youth in the school system

The task of protecting transgender youth in schools has begun. A topic that ten years ago was rarely discussed is now at the forefront of policy-making in many school boards across the country. The job of protecting transgender youth has not been easy and is still in the beginning stages, but it is a source of endless debate and discussion, which means it is on the radar of those who care for youth.

In schools, the discussion has centered around harassment, gendered washrooms and change rooms, segregated sports, dress codes, names and pronouns. Looking at this list, it is easy to see that much of it is a list of details; everyday items that make up a person’s day: getting dressed, going to the bathroom, changing for gym, having your friends call you by name, and playing on a sports team. Part of the reason that transgender youth are fighting task by task is because a youth, for the most part, cannot have surgery to live in their identified gender. Some laws and policies depend on the occurrence of gender reassignment surgery and say that a person must have had some surgery that reflects the identified-gender in order to obtain particular rights. For a youth, this option is not possible and so they fight the battle of details. Their rights cannot stem from the fact that they have proof of surgery or proof of gender on an identification document. This is not to downplay the complexities of gaining rights for transgender adults, but instead to highlight the struggles for youth.

One of the legal debates has been: when does the law accept transgender persons as being the gender that they identify? Some laws and policies depend on the occurrence of gender reassignment surgery and say that a person must have had some surgery that reflects the identified-gender in order to obtain particular rights. More recently some rights have been permitted to transgender people who self-identify their gender. Policies protecting transgender youth cannot depend on the status of surgery, and so have often allowed for self-identification to obtain rights, such as participating on a particular gendered sports team.

Schools are faced with the issue of addressing how to accommodate a transgender youth who wants to use the bathroom or change room that matches their identified gender. Different school boards have used different standards.

The Edmonton Public School Board Policy on Sexual Orientation and Gender Identity HFA.AR asks school staff to be sensitive to the needs and privacy of transgender youth when determining restroom accessibility. It calls for “individual solutions” and mentions finding a solution that does not disrupt the school. …even school boards without a policy will still have human rights obligations toward transgender students.

The Vancouver School Board Policy Code ACB-R-1 assesses the accommodation of a transgender student using washrooms and change rooms “…with the goals of maximizing the student’s social integration, ensuring the student’s safety and comfort, minimizing stigmatization and providing equal opportunity to participate in physical education classes and sports.” It says that transgender students shall be able to use the washroom and change room for their identified gender.

Nova Scotia’s Guidelines for Supporting Transgender and Gender-nonconforming Students encourages schools to find a safe washroom facility that corresponds with a student’s gender identity.

Toronto District School Board’s Guidelines for the Accommodation of Transgender and Gender Non-Conforming Students and Staff goes a step further by clearly stating: “Requiring students to ‘prove’ their gender (by requiring a doctor’s letter, identity documents, etc.) is not acceptable. A student’s self-identification is the sole measure of the student’s gender.”

Some of these policies reference the transgender student’s self-identification as the standard upon which to allow the student to use a washroom that corresponds with their gender. Part of the reason that transgender youth are fighting task by task is because a youth, for the most part, cannot have surgery to live in their identified gender. For instance, Toronto’s policy is the most clear in using the student’s self-identification as the sole gauge of gender. Other policies, such as Edmonton’s, discusses the student’s identity as transgender in the opening paragraph, but in the clause on restrooms looks more toward “individual solutions”, respect and safety. This language of “individual solutions” is in line with human rights law on accommodating a student (or anyone for that matter). When looking for an accommodation, the school is legally bound to look for a solution on a case-by-case basis and to not rely on a one-size-fits-all rule.

School boards such as those in Edmonton, Vancouver and Nova Scotia, have included in their policies that schools must reduce or eliminate gender-segregated activities. Many policies specify that staff should aim toward accommodating transgender youth according to their gender identity in these activities.

The school board policies in Vancouver, Edmonton, Toronto and Nova Scotia all stress safety and openness to the student participating in the gym class or sports team that corresponds to their gender identity. Each policy notes that excluding transgender youth from physical education is not an option. The debate on the issue of sports runs deeper than these policies are able to address in over-arching statements. In the adult world, the desire of a transgender person to play on a single-gender team that corresponds with their gender identity can create controversy. Some of this controversy has been abated. In 2004, the International Olympic Committee adopted a policy whereby transgender people may compete in the Olympic Games if they: have had gender reassignment surgery, are legally recognized and have had two years of hormone therapy. Many sports oriented organizations have followed suit.

The Transgender Law & Policy Institute, an American based organization, published Guidelines for Creating Policies for Transgender Children in Recreational Sports in September 2009. The school board policies in Vancouver, Edmonton, Toronto and Nova Scotia all stress safety and openness to the student participating in the gym class or sports team that corresponds to their gender identity. These Guidelines state that the debates that may cause problems in the adult sporting world are focused on the competitive advantage that male hormones may provide in sports. However, “[i]n preadolescent children… hormonal levels do not differ significantly between the sexes. Therefore, no hormonally-based advantage or disadvantage between girls and boys exist.”

Not every school board in every province and territory has a policy on transgender youth. Some places are creating policies around sports. Some school boards have yet to create a general policy for transgender youth. Every school board would be bound by human rights laws, within their area, that protect students based on gender identity, gender or sex. And therefore, even school boards without a policy will still have human rights obligations toward transgender students. What many of those rights are has yet to be heard by tribunals and courts. Therefore, students may find it difficult to decipher what rights they are entitled to without a policy, and to obtain those rights in a timely manner.

The policies that I reviewed acknowledged that each situation must be addressed on a case-by-case basis. This is the very nature of accommodation – looking at each case individually and finding solutions that would reasonably accommodate a transgender youth. Legal cases providing direction on these issues are few and far between and there are no cases addressing bathrooms or change rooms that have made it to a higher court (for instance, Ferris v Office and Technical Employees Union, Local 15 [1999] BCHRTD No 55 is a tribunal decision regarding the use of the woman’s bathroom by a transgender woman in her workplace). Any case law that does address transgender complainants usually involves adults. Therefore, schools are left to interpret the law as it relates to human rights and apply it to the situation of gender identity.

“Meaningful Access”: Students with learning disabilities strive to be included

March 6, 2014 By Melissa Luhtanen J.D.

Jeffrey Moore attended public school, at School District No. 44 (the “District”), from kindergarten to grade three, beginning in 1991. Jeffrey had access to an aide and attended a Learning Assistance Centre; his parents hired a private tutor. By January 1994, in grade 2, Jeffrey had serious headaches; he was under “significant stress”, was making slow progress in school and was behaving immaturely. He underwent a full psycho-educational assessment and was diagnosed with a severe learning disability. A District psychologist referred Jeffrey to the District’s Diagnostic Centre, however funding cuts intervened and the Diagnostic Centre was closed down. The District had no other program to refer Jeffrey to, and therefore, it recommended that he attend a private school that specialized in learning disabilities. The private school was not available until grade 4 and so Jeffrey had to stay at his existing school as he struggled to read and his self-esteem dropped. Jeffrey’s dad, Frederick Moore filed a complaint against the Ministry of Education and the Board of Education in School District No. 44 for failing to provide the learning supports that Jeffrey required. Moore v British Columbia (Education), 2012 SCC 61 (“Moore”)

This case is informative about a school board’s responsibility to accommodate students with learning disabilities. A District psychologist referred Jeffrey to the District’s Diagnostic Centre, however funding cuts intervened and the Diagnostic Centre was closed down. In British Columbia it is estimated that three percent of students have a learning disability (Supporting Students with Learning Disabilities: A Guide for Teachers, Sept 2011, BC Ministry of Education). The Learning Disabilities Association of Ontario notes that estimates of children who have a learning disability range from 2% to 10% (Learning Disabilities Statistics). This range is affected by the definition of “learning disability”. There is no definition that is widely accepted and so there is no agreement as to whether certain conditions are included in the category of “learning disability”. Regardless of the numbers, Moore notes that, “adequate special education … is not a dispensable luxury.” [para 5] In fact, Abella, J. says that it is a “ramp” into the legislated commitment to educate all children. [para 5]

Moore was heard under section 8 of the British Columbia Human Right’s Code. The case considered whether the “service” that Jeffrey had been denied was “special education” or “general education”. The Supreme Court of Canada agreed with the dissent in the Court of Appeal by Rowles, J.A., who said that the service that had been denied was “general education” available to the public. Jeffery had been denied “meaningful access” to that general education which was mandated by legislation. The School Act preamble in British Columbia says that:

The purpose of the British Columbia school system is to enable all learners to develop their individual potential and to acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society and a prosperous and sustainable economy.

This statement is aimed at all learners and not just learners who do not have a learning disability. In the Moore case, the cuts in the District were made disproportionately to special needs programs. Jeffrey had not received sufficient education at an early stage to address his severe learning disability. He had been given some access to support such as an aide and extra tutoring. However, he had not received adequate support given his challenges and the District’s recommendations. The District had recommended that Jeffrey be placed in the Diagnostic Centre for a more intensive program. However, the closure of the program, coupled by no backup plan or assessment as to the effect of the closure, resulted in discrimination.

The Court noted that the stress Jeffrey was experiencing would have improved with assistance for his learning disability. Getting support can bolster a child’s self-confidence and decrease incidents of behavioural problems. In a 2007 study by the Learning Disabilities Association of Canada, Putting a Face on Learning Disabilities (PACFOLD) (“2007 Study”), it was found that 14.7% of parents who had children with a learning disability reported that their child had been diagnosed with emotional, psychological or nervous problems. This is in comparison with a reported 1% of parents of children who do not have a disability. Therefore, almost 15 times the amount of children with learning disabilities experience psychological difficulties in school. The frustration of not doing well causes psychological stress that can be addressed through remedial help. The 2007 study reported that 25% of Canadians with a learning disability (aged 22 to 29) did not have a high school certificate. The result of an untreated learning disability has a potentially long-term effect.

In the Moore case, the cuts in the District were made disproportionately to special needs programs. For instance, there was an Outdoor School that was not cut even though it cost the District a similar amount. The Supreme Court of Canada affirmed the Tribunal’s finding that there had been discrimination by the District, based on Jeffrey’s learning disability.

A panel for the Edmonton Regional Learning Consortium (the “Panel”) suggested the following to assist students with learning disabilities and to provide them with “meaningful access” to general education:

early identification of students with special needs;
appropriate assessment of what those needs might be; and
the identification and inclusion of supports necessary to provide a “meaningful” education to a student with special needs.

The Panel noted that schools must focus on having a mechanism to identify students and a process to review requests and to ensure that the school does not dismiss a parent’s request without further investigation. (Moore v. British Columbia (Education): what does it mean for inclusive education in Alberta? Mar 21, 2013 12:13, Webinar)

Jeffrey completed his program at the private school in grade 7 and was reading at a grade 5 level, with math at a grade 7 level. He later completed high school at another private school for children with learning disabilities. Clearly he was able to learn with the right program and supports. Frederick Moore was awarded $10,000 for injury to dignity and the money to pay for Jeffrey’s private school tuition from Grade 4 to 12.

You can learn more about the findings in Moore from The Supreme Court Changes Direction: Disability and Discrimination by Linda McKay-Panos, Law Now January 1, 2013.

Cyberbullying or Criminal Conduct?

July 1, 2013 By Melissa Luhtanen J.D.

Facebook, Instagram, Twitter, texting or similar means of communicating over the Internet have given new challenges to teachers, parents and most of all, youth. We tell youth to be cautious, to use their common sense, to not talk to strangers and to keep their personal information private. And yet these precautions, even when followed, do not always protect youth from cyberbullying. Cyberbullying is a serious issue in schools and in the after-school life of children as young as six years old.

However, part of the problem in preventing, punishing and educating on cyberbullying is the difficulty in finding a common definition of “cyberbullying”, and the very real problem of downplaying Criminal Code offences as bullying.

In the past year the media has reported on at least two high profile cases that were labeled “cyberbullying”, and that received mainstream media attention across Canada. One was the case of Amanda Todd, from Port Coquitlam, British Columbia, who killed herself after being “cyber- bullied”. Amanda Todd posted an eight-minute video where she explained, through flash cards how she and her friends were talking on a web-cam with another person. She was 12 years old and she playfully flashed her chest. The person on the other side of the web-cam turned out to be a grown man and not a young boy. He posted the image of her bare chest online. Then he stalked Amanda Todd every time she moved to a new school and sent out the video to her classmates. Bullies at school taunted Amanda Todd, with names such as “porn star”. She hung herself in 2012, at age 15.

Rehtaeh Parsons was a Halifax teenager who also killed herself after events that were named “cyberbullying”. Rehtaeh Parsons was allegedly gang raped. It has been reported that one of the boys took a photo of her being raped and distributed it to her classmates. The RCMP did not lay charges at the time. After the photo was distributed online, boys started texting and Facebooking Rehtaeh Parson asking her to have sex with them. She was bullied because of the pictures that were distributed online. Rehtaeh Parsons hung herself in April 2013.

The Nova Scotia Task Force reviewed many definitions of “bullying” and “cyberbullying” and recommended that the following definition be used for education and legislation in the province:¹

Bullying is typically a repeated behaviour that is intended to cause, or should be known to cause, fear, intimidation, humiliation, distress or other forms of harm to another person’s body, feelings, self-esteem, reputation or property.

Bullying can be direct or indirect, and can take place by written, verbal, physical or electronic means, or any other form of expression.

Cyberbullying (also referred to as electronic bullying) is a form of bullying, and occurs through the use of technology. This can include the use of a computer or other electronic devices, using social networks, text messaging, instant messaging, websites, e-mail or other electronic means.

A person participates in bullying if he or she directly carries out the behaviour or assists or encourages the behaviour in any way.

The cases of Amanda Todd and Rehtaeh Parsons both have elements described in this definition: repeated behaviour, intended to cause fear and distress, harm to the “person’s body, feelings, self-esteem, reputation”. The harassment in Amanda Todd’s case took place electronically. In Rehtaeh Parsons’ case there was the use of technology to distribute pictures of an alleged rape. In both cases other people encouraged the behaviour. On its face, the actions were akin to cyberbullying and were treated as such in the media, and by those who commented on the horrible actions that led to these two girls taking their own lives.

However, on closer examination these cases are much more complicated than cyberbullying. Amanda Todd was being stalked and harassed by a man who lived somewhere in the United States. He lured her into flashing her naked chest and then took a video, which he posted online. These are all criminal offences under the Criminal Code: stalking (Criminal harassment s.264), Internet luring (s.172.1), and distribution of child pornography (s.163.1(3)). Rehtaeh Parsons said that she was raped which is a sexual assault (s.265). Afterwards, pictures of the events were distributed online, arguably also a criminal offence, which would possibly be dealt with under the Youth Criminal Justice Act if those distributing were under the age of 18 years.

We should not be appalled at cyberbullying only when it results in such heinous acts that they must be described as Criminal Code offences. Cyberbullying deeply affects the child who is texted mean messages about her appearance, who is told by text that she is uninvited to a social gathering, or whose picture is posted online and laughed at. Cyberbullying is something that affects a youth’s ability to learn, grow and enjoy school, not something that results in criminal actions against her body or fear of being stalked.

Youth must be encouraged to report cyberbullying. If we continue to conflate cyberbullying with Internet luring, sexual assault and child pornography, youth will not report bullying that takes place online. Reporting cyberbullying is a key component to combating this issue.

In 2010, a 15-year-old girl (A.B.) did report a case of cyberbullying. A.B. discovered that someone had signed up a Facebook account using A.B.’s picture and a slightly different name. A.B.’s picture was posted on the Facebook account with unflattering sexual comments about her appearance. A.B. wanted to find out the identity of the user who had started the Facebook account and posted her picture. However, A.B. wanted to proceed with the case anonymously and also asked for a publication ban. The case went to the Supreme Court of Canada (A.B. v. Bragg Communications Inc. 2012 SCC 46) to consider whether A.B. had demonstrated that there was a “real and substantial harm to her which justified restricting access to the media” (para 7). The SCC said:

If we value the right of children to protect themselves from bullying, cyber or otherwise, if common sense and the evidence persuade us that young victims of sexualized bullying are particularly vulnerable to the harms of revictimization upon publication, and if we accept that the right to protection will disappear for most children without the further protection of anonymity, we are compellingly drawn in this case to allowing A.B.’s anonymous legal pursuit of the identity of her cyberbully. [para 27]

A.B. was allowed to proceed anonymously, but the publication ban on non-identifying information was not granted since A.B.’s identity would be protected by being anonymous.

Having the courage to make a cyberbullying claim is just one aspect of addressing this issue in a thoughtful manner that will encourage youth to report bullying and also support peers who are being bullied. Conflating the issue of cyberbullying with sexual assault, child pornography and other Criminal Code offences undermines the efforts to address problems that are, at the core, cyberbullying. Distributing naked pictures of girls online is not cyberbullying just because it uses technology. It is a criminal offence that warrants a response by Police and RCMP.

Both issues are important and highlight grave challenges for parents and youth. Lawmakers must ensure that the Criminal Code has measures to address the horrible actions of stalkers and pedophiles who use the Internet to lure children. Schools, school boards, communities and governments have a responsibility to address and educate children and youth about cyberbullying, by children against children, in legislation, policies and procedures.

1 Respectful and Responsible Relationships: There’s No App for That: The Report of the Nova Scotia Task Force on Bullying and Cyberbullying (2012) at p. 42.

Cyber Bullying: Bullying Through Technology

November 15, 2012 By Melissa Luhtanen J.D. and Lisa Ellis

Many of today’s new technologies are designed for the sole purpose of facilitating communication between individuals. Not only do these technologies enable communication between friends and family, but a large part of their appeal is that they present the opportunity to meet new people. Among the more popular ways of meeting others online are instant messaging, chat rooms, Facebook and other websites specifically designed for the purpose of meeting and connecting with those who share similar interests. With the click of a mouse, today’s young people have access to the world, and are increasingly more likely to create friendships, and even relationships, online with individuals they have never met in person.

On one hand, today’s new technologies have made communication much easier. Young people have free rein to make new friends with individuals who share similar interests. They can express themselves by sharing thoughts and ideas with like-minded youth. This is especially good for youth who live in rural areas, which have fewer services and a smaller youth community. The potential for increased communication represents freedom – a world generally unrestricted by the piercing eyes of parents, and an exciting world where anything is possible and everyone is no further away than the click of a mouse. Today’s new technologies save time and are instantly gratifying – no more waiting weeks or days to hear back from a pen pal, or even minutes to receive an email. Today’s new technologies feature instantaneous or “real time” communication; a feature very attractive to young people. Youth can “chat” online with multiple people simultaneously, have a conversation with a number of parties, or even send messages to thousands of people. This communication is generally at a low cost, if not entirely free. The opportunity to find other individuals who share similar interests is a big draw – and on the Internet – one can find others who share even the most obscure interests.

More Internet use leads to more opportunities for bullies

There is no denying that technology is playing an increasingly important role in the lives of young people. According to the 2005 Young Canadians in a Wired World study of Grades 9 to 11 students, young people are avid users of technology. Young Canadians are more connected than ever before. Ninety-four percent of young people have access to the Internet in their homes, while 23% of young people have their own cell phones, often equipped with text messaging capabilities and digital cameras. Youth use the Internet to extend their existing social networks and develop new ones. Twenty-one percent of students in Grades 7 to 11 have reported meeting an Internet friend online and 72% said that it was a good experience.1

However, for some young people, the Net is a vehicle for bullying and sexual harassment. The Internet offers a place where some users feel anonymous. One study found that 59% of users have assumed a different identity. Of those, 17% suggested that they pretended to be someone else so they could “act mean to people and not get into trouble”.2

The Internet is a growing and popular tool for bullies. Cyber bullying occurs when a bully uses email, websites, or text messaging to harass other people. Cyber bullying can be done directly to an individual by sending them insults or threats via email, instant messaging, or text messaging. Using all of these technologies and websites, bullies can send insults about a classmate to numerous individuals. In addition, these bullies build sites that target specific students or teachers.

Legal repercussions of cyber bullying

Sometimes, cyber bullying can be a crime. It is a criminal act, under the Criminal Code, to repeatedly communicate with others and cause them to fear for their safety and the safety of those around them. Defamatory libel — writing or stating something that is intended to harm someone’s reputation — is also a crime.3 Some forms of bullying, however, are not considered criminal, even though they have a harmful impact on those targeted.

Cyberbullies may be difficult to trace. They may use computers that are not their own, or claim that they were not the source of the message, but that someone else used their computer. However, if a message is traced back to the bullies, and they are using a school or workplace computer, they will be disciplined through the rules applicable in that space. If the school or workplace does not take appropriate actions against a cyber bully there may be other repercussions. For instance, if the bully is posting discriminatory messages based on any of the grounds covered by the Alberta Human Rights, Citizenship and Multiculturalism Act4 such as race, disability or sexual orientation, and the school or workplace does not address this discriminatory conduct, the victim may make a complaint to the Alberta Human Rights and Citizenship Commission (see www.albertahumanrights.ab.ca to see about potential complaints). This complaint would be filed against the school or workplace based on failure to protect its students or employees against discrimination in the form of cyber bullying.

Stopping and responding to a cyber bully

What can you do about cyber bullying if there are no legal repercussions? The following tips may help.5

When cyber bullying takes place over email:

if you do not recognize the sender’s name, do not open the message;
if you recognize the sender as a bully, ignore and delete the message;
if the bully is using a personal email account, notify the sender’s account provider;
if you cannot determine the identity of the bully, use email tracking software to trace the identity of the sender. Once you know, you can contact your Internet Service Provider to block the sender from your mail;
if the bullying is occurring in an institution, such as work or school, ask that the institution’s anti-bullying policy be applied; and
if the message is very disturbing, contact the police.

For cyber bullying over text messages:

tell someone else about it to get support;
change your phone number or get a new cell phone number; and
if the message is very disturbing, contact the police.

For cyber bullying that takes place through websites, identify the Internet Service Provider on the site. It can determine who runs the site and request that the site be removed. If there is any false information on the website, report it to the police.

For more information on cyber bullying and youth using the Internet see the Alberta Civil Liberties Research Centre website and follow the links to the resource Techno-tonomy: Privacy, Autonomy And Technology In A Networked World.

Notes

1 V. Steeves, Ph.D., “Young Canadians in a Wired World Phase II: Trends and

Recommendations”, (Media Awareness Network, November 2005).

2 Ibid.

3 Media Awareness Network, “Challenging Cyber Bullying”.

4 RSA 2000, c. H-14.

5 Be Safe Online: Bullying Online.

The Complexities of Privacy and Social Networking Sites

November 1, 2012 By Melissa Luhtanen J.D.

Two cases, released in April 2012, from the Office of the Privacy Commissioner of Canada (“OPC”) demonstrate the privacy challenges facing users of social networking websites.

The first allegation was made by a user who alleged that Facebook was collecting, using and disclosing his personal information without his knowledge or consent (OPC #2011-006). The case addressed the issue of third-party websites hosting Facebook social plug-ins such as the “Like” and “Recommend” buttons. Social plug-ins are defined by Facebook as “buttons and boxes designed to display certain Facebook functionality on third-party websites.” These buttons are shown on the user’s screen when they visit a third-party website. So, for instance, a Facebook member who is logged into her account may see an article highlighting a news website that her Facebook friends have recommended. A non- Facebook user, visiting the same site, will see how many members have recommended that certain article.

In order to assess the privacy implications of social plug-ins used on third-party websites the OPC examined the technical aspect of how this process of exchanging information between the end-user, the third-party and Facebook occurred. The OPC found that Facebook did not share personal information with third-party websites. It may have shared “metric” information that it received through the social plug-in, such as a log of anonymized user data, however, individual information was not identifiable.

The OPC found that Facebook sufficiently disclosed the use of the information on its Privacy FAQs. Facebook therefore had received informed consent from its Facebook users.

The OPC noted that Facebook does receive information any time that a user visits a website that hosts a social plug-in. There are presently over 2 million such websites. The “impression” data that Facebook receives is a log of [para 14-15]:

the date and time a visitor visited the web page;
the address of the webpage the visitor is visiting (url);
the visitor’s general geographic location;
the visitor’s browser cookie ID;
the Internet Protocol (IP) address associated with the visitor’s computer;
the browser and operating system being used by the visitor; and
for Facebook users, their Facebook user ID.

While Facebook’s practice fell within the Personal Information Protection and Electronic Documents Act (PIPEDA), many users would likely be surprised that such detailed information about them was being logged every time they accessed participating third-party websites while logged into Facebook. Many users, once logged into Facebook, stay logged in all day through a checkbox that says “Keep me logged in” and so would hardly recognize that Facebook is still operating in the background. While users are becoming more savvy about the collection of their personal data, social networking sites are becoming more complex.

As a side-note, while investigating this complaint, the OPC had to examine some of the cookies that are used with social plug-ins. It found that one of the cookies was not working properly and, in fact, Facebook users who had already logged out of Facebook, were still being tracked. Facebook fixed this issue during the investigation stage. However, the OPC noted that its decision did not address the use of cookies for web tracking.

A second decision (OPC #2012-002) was filed by three complainants who had received email invitations to join Facebook with a list of “friend suggestions”. None of the complainants were Facebook users and yet the friend suggestions were surprisingly accurate. The complainants surmised that Facebook had inappropriately accessed their address books to determine what friends might be members of Facebook.

Facebook said that friend suggestions are generated through an algorithm that identifies other users who have [para 6]:

imported the non-user’s email address;
previously sent the non-user an invitation;
invited the non-user to an event; or
tagged the non-user in a photo.

Therefore, when a Facebook user invites a non-user to join, Facebook examines other Facebook accounts through this algorithm to determine what friends the non-user might have. The non-user’s email address may be in the Facebook user’s address book, might have been tagged in a photo on Facebook, or found in other event invitations. The matches are then sent to the non-user with the invitation that was initiated by a Facebook user. If the non-user did not reply to the initial invitation then more invitations were sent as follow-up.

The OPC did not find any evidence that Facebook had accessed the non-user’s email address books. An individual who invites a non-user is reminded to get the non-user’s consent to send an invite from Facebook. However, the OPC said that the concern of this particular complaint was whether the non-user had given permission to process their email address through Facebook’s algorithm in order to make friend suggestions. At no time had the non-user been given an opportunity to opt-out of the friend matching process, because the first invitation included the list of generated friends. Facebook agreed to remove the friend suggestion from the initial invitation and to provide the non-user with a more prominent opt-out mechanism.

The case also discussed whether Facebook could rely on a non-user using an “opt-out” procedure rather than an “opt-in” feature. Principle 4.3.6 of PIPEDA says that an organization should generally seek express consent when information that is being used is sensitive. The OPC discussed whether Facebook’s processing of a non-user’s email address could be considered the use of ‘sensitive’ information. The OPC commented that the social connections gained from that email could be considered sensitive. It is reasonable that non-users would not necessarily expect Facebook to be using their email when they had no previous relationship with Facebook. However, Facebook argued that an opt-in regime would be unworkable in the friend suggestion feature. Also, making a Canadian-only change to the friend suggestion process would be impossible. In addition, the results of the friend suggestions were only viewed by the non-user and no one else. Since PIPEDA calls for a reasonable and pragmatic approach, the OPC accepted Facebook’s submissions. It accepted the use of an opt-out procedure with certain conditions, including that it is only used for non-sensitive Privacy concerns will continue to follow social networking sites. Around the time that these cases were released, another lawsuit was filed regarding the placement of a Facebook user’s portrait and name next to third-party advertising. Plaintiff Deborah Douez had clicked the “like” button for an organization called “Cool Entrepreneurs”. She thought that it would show up in her news feed once, but her friends informed her that her name and photo were showing up in an ad for Cool Entrepreneurs.

Those people who are concerned with the collection, use and disclosure of personal information by social networking sites must be extra vigilant to explore how these sites will affect their privacy. Youth are particularly at risk since they do not always have an experience of a more private, less technologically-driven world, nor do they fully understand the implications of a loss of privacy. As the ability to share information on these websites increases, so does the complexity of how that information can be disseminated.

About Melissa Luhtanen J.D.

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