As I mentioned in my last post, one of the things that I've been thinking about lately is how law and scholarship are beginning to pay more attention to the importance of audience in various contexts. One interesting student note I encountered while researching this article identifies a category of "audience-oriented crimes," in which the presence of the audience profoundly affects the wrong, and thus participation through spectating may attract criminal liability or other penalties. For these audience-oriented wrongs, the "presence and reaction of the spectators" is a "motivating factor" that encourages the underlying activity. The author argues that drag racing and dog-fighting already fall into this category, and that gang rape or group sexual assaults should be included as well.
Cyberbullying arguably also belongs in this category of audience-oriented wrongs, and at least one Canadian jurisdiction appears poised to address it as such. In the province of Alberta, new legislation dictates that students must "refrain from, report, and not tolerate bullying or bullying behavior directed towards others in the school, whether or not it occurs within the school building, during the school day or by electronic means." Failure to perform these obligations may result in penalities like suspension or expulsion.
Currently, the "duty to report" piece of this legislation has received much critical attention, as has the fact that the legislation clearly extends to things that happen off school grounds and outside of school hours. But the duty to "not tolerate bullying" is pretty remarkable, too. Arguably, spectating is a form of tolerating, meaning that in addition to a duty to report, the legislation may also target the wrong of watching the bullying. The Note explains that although spectating and not reporting are related, they are also distinct: "[t]hough it is wrong to fail to [report], the greater wrong is the decision to watch, and through that approving presence, encourage."
Two aspects of the encouraging presence of spectators in the cyberbullying context are worth mentioning here. First, in drag racing, dog fighting, and gang rape, the audience is a physically present group. Theoretically, this makes enforcement of anti-spectating laws fairly simple. In the cyberbullying context, however, the audience is most likely going to be a series of different individuals in cyberspace, viewing at different times and from different places. This makes enforcement a more challenging proposition; cyberbullying is difficult to envision as an "event," which law enforcement can ruin by attending and breaking-up in the way it can a drag race or a dog fight. Second, the size of the online audience as not limited to just the particular people present at a particular place and particular point in time, but instead extending to encompass anyone on the internet during the length of time something is easily accessible, is both part of what makes the harm of cyberbullying so egregious, and part of what makes the responsibility for it seem more diffuse and harder to police.
It's not clear yet how the Alberta legislation will play out, but given that the law in many jurisdictions is in a constant state of flux over how best to address cyberbullying, we may see similar measures crop up in other jurisdictions. I suspect given the differences between the audience in this context and other audience-oriented wrongs, this kind of legislation will have little real-world affect on the relational and cultural dynamics that contribute to cyberbullying among youths, but recognize that it has expressive value nevertheless.