Restorative Justice Responses to Cyber Harm

While technological improvements and the fast development of the field of information technology have come with many advantages and new possibilities, they have also resulted in the emergence of related criminal behaviours. Of these, some consist of distinctly new offences, while others are simply traditional offences committed through new means, albeit displaying specific trends and characteristics. Cybercrime thus encompasses a wide range of offences but this piece will focus solely on online abuse and harassment, cyberbullying and cyberstalking and the potential of restorative justice to address the consequences of such harm.

Online/cyber abuse and online/cyber harassment are often used interchangeably and can refer to either multiple incidents or to an individual harmful act. It is important to recognise that even one incident of online abuse, such as a death threat or the publishing of personal information or a picture, can have severe consequences.

Cyberbullying and cyberstalking, however, refer solely to repeated behaviour and usually consist of a similar range of actions. The main difference lies in the fact that cyberbullying is used in relation to minors (generally, both the perpetrators and victims of this cybercrime are minors but, while this is predominantly accepted as a defining trait, it is not universal, for example, in Australia and New Zealand).

The common trait of these cyber offences is that they aim at shaming, intimidating, humiliating, threatening or frightening an individual or a group. Two concrete cases, one on child pornography and one on online hate speech, will demonstrate that different practices (such as conferencing and mediation) can be offered to those who caused and those who suffered online harm.

As the digital world evolves, many of the harmful behaviours that have so far only taken place in person have a corresponding online behaviour. While it is important to acknowledge that the use of digital means to cause harm implies some legal and practical differences, one should keep in mind that more often than not the underlying dynamics do not change. Additionally, while a percentage of perpetrators limit their behaviour to the online sphere, for others online harm is an extension or a prelude to ‘offline’ harm, or at the very least threatens ‘offline’ harm. Most importantly, no significant differences in levels of medical and psychological effects on victims (and most social and financial effects) have been found between online and ‘offline’ crimes (Sheridan and Grant, 2007).

Repetition: Like in ‘real life’ offences, repetition is a fundamental element of certain crimes. This does not change in the cyber context. However, the very nature of the online environment implies a different understanding of repetition: as we have heard so many times before, ‘once something’s online it’s there forever’ — it can be saved, reposted, forwarded, liked, commented on, or just simply viewed indefinitely. It is therefore necessary to distinguish between direct and indirect communications. A direct communication would take place in a private context (electronic communication between the perpetrator and the victim only), and would need to constitute a pattern of conduct to qualify as repeated — as with ‘offline’ definitions. However, in circumstances where a perpetrator posts an electronic communication into a public forum, such as a public blog, a social media forum, or a video-sharing website, it is no longer necessary for the victim to prove a course of conduct to satisfy the element of repetition. Repetition occurs by virtue of the arena in which the behaviour occurs (Langos, 2012, p. 286).

Because of this, victims of indirect communications can be subject to continuous (even if — sometimes — unintentional) victimisation after just a single incident and can be severely affected by it.

Anonymity: A fundamental difference in cyber offences is that, in a significant percentage of cases, the perpetrator is anonymous. Studies of both adult and youth offenders have associated anonymity or relative ‘invisibility’ with diminished awareness of the consequences caused by one’s actions. This then implies fewer opportunities for empathy, remorse and bystander intervention (Slonje and Smith, 2008). Similarly, the perceived remoteness of online interactions has been linked to reduced inhibitions that would otherwise prevent individuals from engaging in harmful behaviour altogether (Jones et al., 2013; Despres, 2017).

Another significant characteristic of anonymity lies in the emotional distress it causes (especially to victims of cyberstalking and cyberbullying): the lack of knowledge on the victim’s part often results in damaging day-to-day-life disruptions, attributable to a feeling of distrust caused by the recurring sense that the offender could be anyone (even someone known by the victim), and could make a face-to-face appearance at any time (Short et al., 2015).

Even though rates of anonymity are often exaggerated by public discourse, approximately half of all those who have been harassed online have reported not knowing the offender’s identity, while anonymity rates in cyberstalking and cyberbullying are around 20% — most likely due to the crime’s more personal nature (Short et al., 2015; Duggan, 2017).

"Anonymous individuals using their ‘freedom of speech’ and anonymity to purposefully antagonise others, attack those with differing opinions, or merely to exercise the illusion of power over another. People commonly go far beyond what would be deemed culturally or socially acceptable in a normal interaction. (Online abuse victim; Duggan, 2017)."

Currently, the Council of Europe’s Convention on Cybercrime (CETS No.185), also known as the Budapest Convention (Council of Europe, 2001a), is the only binding international instrument on this issue. It serves as a guideline for any country developing comprehensive national legislation against cybercrime. The convention is also supplemented by an Additional Protocol ‘concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems.’ A second additional protocol is underway.

The convention and its additional protocol cover some instances of online harassment (namely certain racist and xenophobic acts) and sexual harassment of victims under 18 years of age (offences related to child pornography) (European Parliamentary Research Service, 2018).

However, cyberbullying and cyberstalking have yet to be defined and criminalised in binding instruments. Similarly, there are several acts of online abuse that are not recognised by the existing legal instruments. Even when confronting national legislations of Member States, there is an apparent lack of common ground in regard to these offences (Van der Aa, 2011, p. 198).

Practitioners would therefore need to consult national legislation when working on online abuse/harassment, cyberbullying and cyberstalking cases.

Other than the common minimum standards on the rights, support and protection of the victim of crimes (European Parliament and Council, 2012), one should keep in mind that victims of cybercrimes often suffer minimisation or victim-blaming. Given the ‘no-contact’ nature of these crimes, individuals often erroneously believe that it would be sufficient to not make use of digital technologies to get away from the abuse. However, victims often cannot afford to do so due to the inevitable need to make use of technology in everyday work or education and — even if they could — they should not be forced to. Additionally, the lack of legal consensus between different jurisdictions, inconsistent law enforcement and numerous legal challenges, including to access to data, evidentiary requirements, jurisdictional limitations and lack of education and resources (United Nations Office on Drugs and Crime, 2019) often further discourage victims from seeking help. Thus common misconceptions and systematic minimisation have discouraged the majority of victims from seeking professional help such as therapy, legal or court services or reporting their victimisation to law enforcement (Fissel and Reyns, 2020).

Given the discussion regarding the characterisation of ‘repetition’ in the cyber context, one should note that victims of these cybercrimes through indirect communication need communications to be removed for their victimisation to stop. Even though courts often fail to recognise this, abusive communications must be removed from public forums for cyber victimisation to stop (Halder, 2015).

In cyberstalking cases, approximately 80% of offenders are known to the victim and the vast majority of them are either acquaintances or previous intimate partners (Jones et al., 2013). This is especially relevant when one considers that stalking has often been linked to intimate partner violence, sexual assault and intimate partner homicide (Stalking Prevention, Awareness, and Resource Center, 2018).

As previously noted, cyberbullying is commonly understood as a crime perpetrated by minors. Practitioners working in this arena should keep in mind that likelihood of youth engagement in online harassment has been linked to a poor caregiver-child emotional bond, low caregiver monitoring and frequent parental discipline (nagging, yelling, punishing), and physical or sexual victimisation by an adult in the previous year. Additionally, young people who are victims of bullies in offline environments are significantly more likely to harass others in online environments. Therefore, youth-targeted education might be more successful than parent-targeted information and prevention and intervention efforts should recognise the relationship between victimisation and aggression in this online environment. Finally, young people who report online harassment are more than twice as likely to have engaged in delinquent behaviour in the past year and almost twice as likely to report frequent substance use (Ybarra and Mitchell, 2004).

Online abuse is often centred around personal or physical characteristics such as political views, gender, physical appearance, race and sexual orientation/identity (Short et al., 2015).

Overall, social inequalities and discrimination are represented online as they are in the real world. Nonetheless, there are some specific facts worth keeping in mind:

• Women, and especially young women, encounter sexualised forms of harassment at higher rates than men. These can include unsolicited pornography, sexual threats, unwanted sexualisation, revenge porn and other similar acts.
• Younger adults are especially likely to encounter severe forms of online harassment, and young people tend to experience the after effects of online harassment at relatively high levels (Short et al., 2015).
• LGBTQIA+ individuals are more vulnerable to online harassment, especially from strangers (Finn, 2004, p. 480).
• Online racial discrimination, particularly on the basis of skin colour and origin, for example, home country, is extremely common (Tynes et al., 2016).
• Victimisation on the basis of social identities has a particularly detrimental impact on health. Young people who experienced bias-based harassment due to race, sexual orientation, disability or religion reported lower mental health status and increased substance use levels (Tynes et al., 2016).
• While results vary across studies, it appears that cyberstalking and cyberbullying result in higher prevalence of male victimisation than their offline corresponding crimes (Slonje and Smith, 2008).

Restorative justice is rooted in the values of respect and responsibility. Given the abusive and often discriminatory nature of these crimes, as well as the legal difficulties in prosecuting previously mentioned, restorative justice has the potential of offering both victims and perpetrators a chance for justice and healing, while including cases deemed unlikely to result in a conviction or to be reported in the first place (March and Wager, 2015; Rietman, 2017).

However, when considering the benefits and challenges of applying restorative justice to the three cybercrimes in question, distinct cases must be identified:

Cases involving anonymity: given the previously mentioned implications of anonymity or relative ‘invisibility’, victims of such crimes are often left wondering why and how they were victimised. There also appears to be a prominent victims’ desire to meet the offender and share the effects and the consequences the crime had on them, particularly as the offender may have been ‘cushioned’ to them throughout their harmful conduct. As it is unlikely that offenders of strictly online crimes will ever meet their victims in person, meeting during an online restorative process could be beneficial for both, insofar as victims would be given a chance to ‘give a face’ to the offender while voicing their experience and perpetrators might be positively impacted in their future behaviour by seeing and acknowledging the damage they have done (Button et al., 2015). Clearly, as in all restorative justice practices, such encounters must be well prepared by trained facilitators and accepted voluntarily by all parties.

However, this clearly only applies to instances in which the perpetrator has been identified, which unfortunately precludes the application of restorative justice — or any kind of justice, for that matter — in a number of cases (Broadhurst, 2006, pp. 413--414). It might also be the case that perpetrators are identified, but are not located within the same jurisdiction: this might pose further legal and resource-based challenges. Restorative justice processes with surrogate victims and/or perpetrators might be an option in these cases.

Cyberbullying incidents: Given the more widespread use of restorative justice in schools and with minors, restorative practices ‘make perfect sense’ to resolve cyberbullying incidents, insofar as they fulfil schools’ missions of educating students not just in subject matter areas but also for citizenship which includes shared values of a civilised social order’ (Duncan and Brandeis, 2016)

Prevention in particular has been highlighted as a successful strategy. It appears that a focus on skill-building would be most beneficial, resulting in students being taught relational and social skills such as perspective-taking, emotional regulation, communication skills and effective bystander intervention skills (Langos, 2012). The implementation of the restorative practice model should then mostly be spent on programmes and actions that focus on changing the culture of the school and making it a safe and caring environment (Reyneke, 2019). (For those interested in knowing more about this topic, the European Forum for Restorative Justice held an online event on Restorative School Culture on December 13th, 2021.)

There are also several techniques that can be used at an early intervention stage, including restorative conversations, conferences and problem-solving circles (Reyneke, 2019).

"Restorative justice programs offer schools alternative strategies for addressing student misbehavior and complex issues, offer a supportive learning environment conducive to learning, improve student safety, and strengthen connections between students and staff."(Akalaonu, 2014, p. 19)

With an emphasis on values of empathy, respect, honesty, acceptance and accountability among participants and those in the school community, restorative programs have reduced detention and suspension rates, improved students’ academic performance and attendance and improved the social environment at schools. Furthermore, restorative practices involve bringing the community together to address and resolve an issue. This is also beneficial to schools in addressing cyberbullying as its adverse effects do not only affect targeted students, but also students who witness and/or participate in the bullying, those students who bully themselves, teachers and administrators, parents and families of the students involved and the school and broader community at large (Akalaonu, 2014).

However, given the correlation between online abusive behaviour and poor child-caregiver relationships, restorative practices that involve parents and guardians might encounter possible challenges and complications. In this case, restorative approaches may also serve to work on adult-child relationships and conflicts.

Cyberstalking cases involving previous intimate partners: While not altogether precluding the use of restorative justice in such cases, research has suggested that, given the particularly delicate nature of intimate partner violence, the applicability of restorative practices should be carefully considered on a case-by-case basis. Victim and offender assessment should be carefully evaluated and facilitators should be trained in the impact of abuse and trauma, as well as knowledgeable about the subtle forms of abuse and underlying relationship dynamics (Cheon and Regehr, 2006). Additionally, as many jurisdictions still prohibit access to restorative justice to cases of intimate partners violence, this limitation may expand to online crimes as well.

In 2011, in a middle school in Wright County (USA), some students (aged 11–14) divulged sexually explicit images of a student they had found on her boyfriend’s cell phone. By the time school officials intervened, the photos had already been distributed to several pupils. Given the age of the girl, under local legislation, many students could have potentially been charged with possessing and distributing sexually explicit pictures of a minor (child pornography), a felony offence.

Having understood the circumstances and decided to opt for a different approach, the school district, the County Attorney and the Sheriff’s Office decided to divert the case to the Wright County Restorative Justice Agent, who consequently organised a restorative group conference with almost 40 participants between the students, their parents, the County Attorney, the Investigating Officer, school administrators and teachers.

Some parents initially expressed anger as they thought that their child was invited to participate for something they believed was not their responsibility. Once the girl was able to express her experience, the harm done was better understood. She explained that her intention was for the pictures to remain between her and her boyfriend, but was now forced to live with the consequence of the picture being ‘forever floating’ on the Internet.

The conference resulted in a signed agreement made through unanimous consensus, stating that:

• the students would apologise, write a written report on the risks and dangers of sending or receiving child pornography and promise immediately to report to the school administration or the school resource officer any sexually explicit pictures they might receive in the future or believe are circulating;
• the parents would monitor more closely their child’s cell phone and Internet use; and
• the school district and county probation would develop one presentation for parents and one for students in the district, with age appropriate lessons on sexting, legal and school consequences and cyber literacy.

This incident resulted in the development of a county-wide program to handle sexting cases involving minors, as well as prevention and education. The process uses community conferencing, diversion and charging based on case-by-case facts. The Restorative Justice Agent works with the County Attorney, school resource officer and school administrator to determine the proper approach in each case. Since then, the seriousness of cases and the number of young people involved per case has reportedly diminished, and students have been observed to report cases more frequently and promptly.

As part of the prevention and education program the county has also created a ‘Teens and Technology — Safety and Risky Behaviour’ presentation to be delivered to young people and parents. The presentation aims at educating on the potential risks and dangers young people face today due to inappropriate or risky use of social media and technology, as well as on the relevant legislation, and includes videos, case examples and statistics. Parent workshops have also taken place (MacMillan, 2015).

In the wake of the Turku terrorist attack in Finland (August 2017), journalist Sami Koivisto’s family was threatened with death in an online forum, following his publishing of an opinion piece in support of migrants, asylum seekers and the Muslim community which suffered discrimination after the Turku attacks. The threat was accompanied by a a cartoon image in which the murder of his family was being celebrated with coffee and cake.

This was not the first time Koivisto was a target of hate speech but, while he often reported it, he did not find this to be an ‘attractive option’ as Finland’s laws do not recognise hate speech as an offence in itself.

Almost a year later, Koivisto was offered the opportunity by the police to meet with the person who had threatened his family and, while initially reluctant, he agreed. In November 2018, they finally met through a mediation service provided by the police. During the encounter, Koivisto had a chance to explain the impact that hate speech had on his work, family, and everyday life, which left him feeling ‘freer and empowered.’ In turn, the man who had threatened him apologised and tried to offer him an explanation as to why he acted that way. Koivisto reported feeling surprised that he was ‘just a regular Finnish guy’ with small children at home: it is interesting to realise that meeting face to face often helps to deconstruct or dispel false images about the other person. Offenders are usually perceived as monsters, or at least they fit a personal imagination of evil, but meeting in person can help readjust that perception.

The mediation resulted in an agreement between the two jointly to write an article on hate speech, ‘its economic impact of hate speech, its effect on the health of the nation, and the risks it poses to the maintenance of social harmony’.

When asked, Koivisto’s offender stated he would never end up again in a similar situation and write a similar kind of message and, while he realises that ‘what is done cannot be undone,’ he is ‘truly sorry’ and ‘disgusted’ by what he did.

Alma Zizzola has a Master in Human Rights and Conflict Management. She was a Training, Practice, and Communications Intern at the EFRJ in 2021-2022. 

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