Image by Sebastiaan ter Burg
A story hit the Internet recently that really got me thinking about the law in this digital age, and how things need to change amidst an unprecedented time that sees almost every person in the world amass a digital record. A Vancouver teacher’s life and career has been completely derailed because of an ex-girlfriend’s vendetta that has her posting anywhere — everywhere! — on the Internet that he molested students. David Lee Clayworth dated his harasser, Lee Chin Yan, for a few months in 2010 while he was teaching in Malaysia, and after they broke up, she stole his laptop, hard drive, and other personal belongings and emailed his contacts as him, “confessing” to have molested students. She put nude photos of him online. She has posted all over social media, calling him a psychopath or worse. A Google search for his name quickly brings up these comments, and despite having excellent references, Clayworth hasn’t been able to find a teaching job because of them.
So take her to court, you’re probably thinking. Clayworth did. He sued her in Malaysia (since that’s where Yan lived), and the judge found her guilty of defamation. He ordered her to pay $66,000 in damages, but the harassment continued. (She was then charged in contempt of court, and has since fled the country, possibly to Australia.) The court also ordered search engines like Google, Bing and Yahoo to remove Clayworth’s name from their engines, but that has been unenforceable. The main problem here is jurisdiction. These companies are based in the United States, so they don’t have to comply with a court order from Malaysia if they don’t want to. Google can’t even really follow the court order to make the name unsearchable, because of the way a search algorithm works. (The fact that a judge doesn’t really know how a search engine works doesn’t really come as a surprise.) Clayworth has directly contacted some websites that have posted the smear campaign, but most of them have not removed the content, again because they don’t have to follow a court order from Malaysia since that’s not where they’re based — it’s not even where Clayworth lives anymore. Despite some cooperation from webmasters, Yan simply reposted the content within hours. U.S. law also protects these sites from liability for things that their users post. The problem remains: the law has not been able to keep up with technology, and unless it does, cases like this one are going to become even more prevalent.
Where do we start? Is eliminating the need for jurisdiction in cases that involve the Internet, with the prosecution and defense in different countries, the best place to start? Because obviously, it is not practical for victims to have to file lawsuits in every country where an offender or offending website is based. George Takach, a Toronto-based technology lawyer at McCarthy Tetrault and adjunct law professor at York University, agrees, although he does acknowledge the need for the law to evolve in this area. “The concept of jurisdiction remains very important, although it certainly becomes more complicated when dealing with cybercrime,” he says. “The concepts of national sovereignty and self-determination are central to our system of international law. States are, for the most part, entitled to set their own laws; but each state is limited in its ability to enforce those laws outside its own borders. One only needs to consider the history of state prosecution of political dissidents to realize that there is some risk in allowing any country to assert legal authority over anything, anywhere, at any time.” An obstacle is that there isn’t a global consensus, so to speak, on what constitutes hate speech, or defamation, or even freedom of speech. And getting everyone to agree is a difficult task, because every country’s system of law is based on both cultural and historical factors. “The balance between freedom of expression and protection from hate speech and defamation, for example, is subject to very different interpretations in different legal systems,” says Takach. And who are we to impose on other nations what that means?
This isn’t to say that policy makers haven’t been thinking about these issues — quite the opposite, in fact. Canada has recently signed (though not ratified) the Council of Europe Convention on Cybercrime, an international treaty that will require member states to have the same definitions for crimes such as child pornography, computer fraud, and hate speech, as well as require all members to cooperate in cases that involve these crimes. “The key to international enforcement is to get countries to cooperate with each other, and the way we generally do that is through international agreements or treaties,” explains Takach. This Convention on Cybercrime is an important first step. However, it doesn’t deal with defamation, and would be useless in cases like Clayworth’s, assuming Malaysia and the U.S. were part of the treaty to begin with. And this measure is not without its own controversy. Many are concerned that it could be used to legitimize government surveillance of private communications, as well as violate the protection of freedom of expression and privacy as a constitutional right. “What this indicates is that achieving the kind of international consensus that is required to harmonize the world’s legal systems is a slow and politically difficult process,” explains Takach. “So, for example, that kind of a consensus is slowly forming around child pornography and computer fraud, but questions around defamation are much more difficult, partly because getting consensus around the question of ‘What is defamation?’ is a real challenge.”
When I initially read about the Clayworth case, I wondered why we don’t yet have an international court that deals specifically with cases like this. And this idea was actually proposed in 2011, essentially an international court that would be overseen by the United Nations Security Council to deal with cybercrime. Takach does concede that while this idea works in principle, in more practical terms it’s still subject to most of the issues that we have already talked about — everyone would have to agree to the same legal definitions for different types of crimes, and it would still be dependent on all parties working together to enforce these laws. This requires a complex dance of both policy and diplomacy, and we’re simply not quite there yet, though the fact that this type of court has been proposed at all is a good sign that we’re well on our way towards one day finding a solution that works for everyone.
What can victims of cyber stalking, harassment, and defamation do? Unfortunately, for the most part, it’s on individuals to protect themselves. Parents should definitely be having serious conversations with their children about online privacy and what information they should and not be sharing in their digitals lives. Even adults should be mindful. “Always keep your laptop locked with encryption, don’t tell anyone the password, and never let anyone take compromising photos of you, because you never know where they will end up on the Internet,” advises Takach.
It’s not the answer most of us want to hear, but until the legal system catches up, it’s up to us to protect ourselves from being victims of this type of behaviour.
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Megan Patterson is the Science and Technology Editor at feminist geekery site Paper Droids and currently a Toronto Standard intern. She also tweets more than is healthy or wise.
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