The Scarlet Letter | Season 2 |Episode 11 | Jane Bailey

Turns out being filmed by your high school teacher with a pen camera isn’t an automatic slam-dunk in court. In this episode, Jane Bailey, a Professor from the University of Ottawa's Faculty of Law joins us for a lively chat about the Jarvis voyeurism case, why it ended up in front of the Supreme Court, and how she dusted off her courtroom robes to fight for girls’ rights to bodily privacy and digital dignity. She dives into her research on how tech platforms, despite their shiny promises of digital empowerment, often corral girls and young women right back into old stereotypes, all while mining their data for profit.

First published 2017.

The Scarlet Letter podcast is produced by the Feminist Legal Studies Group. This podcast features interviews with feminists connected to the law, discussing their life, work, and feminist perspectives. It's perfect for anyone passionate about feminist legal scholarship.

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Transcript | The Scarlet Letter | Season 2 | Episode 11 | Jane Bailey

Tamara Wilkinson: [00:00:00] Good morning. I'm Tamara Wilkinson and welcome to this episode of The Scarlet Letter, the monthly podcast of the Feminist Legal Studies Group at Monash University's Faculty of Law. Today, I'm joined by Professor Jane Bailey of the University of Ottawa. Professor Bailey is a full professor of law at the University of Ottawa, where she conducts research and teaches about the intersections of law, technology, and equality.

She and Dr. Valerie Steeves co lead the Equality Project, a seven year SSHRC funded partnership of researchers, educators, advocates, civil society groups, and policy makers who are interested in examining the impact of online commercial profiling on children's identities and social relationships. Jane leads the project's dream focused on cyber violence [00:01:00] and vulnerable youth.

Among her proudest professional achievements are co leading the e girls project, creating and teaching a first year law course called Cyberfeminism, and appearing before the Supreme Court of Canada in the Jarvis voyeurism case. Jane has received the Canadian Bar Association's 2015 Raymond John Netitian Award for outstanding contributions to Canadian law and legal scholarship, and she was named a member of the new College of the Royal Society of Canada in 2016.

She has presented her work on tech facilitated violence against girls and women, youth perspectives on online defamation, and girls experiences with privacy and equality in online social networks at local, national, and international conferences, and in invited testimony before numerous parliamentary committees.

Jane is currently a visiting professor at the Royal Melbourne Institute of Technology in Australia, and earlier this autumn was a visiting professor at Hong Kong University. Jane, thank you [00:02:00] so much for joining me today to talk about your work. Thank you for inviting me. So Jane, your work centers strongly around themes of equality and feminism.

Would you be able to start by telling me a little bit about what feminism means to you on a personal level? Sure.

Jane Bailey: For me, feminism is As a law professor, obviously, at least is in part about Thinking through from a theoretical and legal perspective how we facilitate lived equality, substantive lived equality for girls and women.

And, but more broadly it's a sort of a way of living, a practice. Of thinking about how we act and interact in the world and how different social locations impact those who either self identify or are identified as woman or girl.

Tamara Wilkinson: Yeah. Yeah. I think that's a very it's a really important [00:03:00] comprehensive definition that sort of takes into account a lot of.

It's the ways that feminism intersects with law, so it's really great. So are you able to tell our listeners a little bit about your eQuality and eGirls projects?

Jane Bailey: The eGirls project which I also co led with my colleague Valerie Steeves started out of a certain sense of frustration.

Where there was a lot of writing, particularly in the early stages of the internet that suggested, internet technology, digital networks were going to emancipate girls and young women that, that we'd be able to use these technologies to take control of the pen and, get rid of all the stereotypes by writing the script of really In, in, in real terms, what does it mean to be a girl or a woman, and from a lived perspective.

And yet and counter to that, there was all of this sort of talk at the legislative level about all of the danger [00:04:00] associated with the internet. We had a brief period in Canada. At a time when we called the internet the information superhighway where everyone, where everything was seen as sunshine and roses as well, right?

Where the internet was the, going to be the key to economic well being. And so there was a drive to, especially to get kids online. There was a competition between us and the United States to see who'd be able to do it first. And to get kids online and to keep them online as part of this. I think a primarily sort of economic vision and very shortly thereafter when issues came out around, child, the use of the internet for child luring or hate propagation and so forth, that parliamentary discourse quickly took a turn toward, the internet and technology as dangerous and a bad place to be.

And so there was these strange completely polar arguments about what the internet was going to mean for girls and young [00:05:00] women. And very little discussion about, from directly from girls and young women themselves, about what actually technology meant in their lives. And the Equality Project in part was born in order to sit down with girls and young women and ask them about their experiences with privacy and equality online in, in networked spaces.

And so we conducted interviews with groups with girls and young women in this sort of 15 to 17 and 18 to 21, 22 range. And we just, we came up with a really rich set of data that showed really the complexity of the online environment and in particular the way that corporate structuring of online spaces affected our participants ability to really do as theorists had been predicting to break all the molds, crush the [00:06:00] stereotypes because in part they were part of a sort of massive commercial enterprise that involved collecting their data for profiling purposes.

And then feeding them back typical stereotypes from mainstream media and then they found themselves in a competition to get the most likes. And the way to get the most likes was to repeat the stereotype because it was recognizable. And then from there you were setting yourself up for conflict and harassment, judgment and criticism.

And so This sort of idyllic world that theorists had painted was quite inaccurate and also that, that, the stranger danger world that the parliamentarians were worried about also didn't really tell the story. And so as we disseminated our results through books and in conferences and so on, we were just continuously encountering individuals and [00:07:00] organizations.

Who would come up to us after a presentation and say, exactly this is exactly what we're finding in our work with our community organization and so forth. And that really from the results of e girls and the, and it really wealth of responses from like minded individuals and groups, the Equality Project was born.

And we, it's a partnership project, which means that it involves academics and community organizations. So we have 24 community and government partners. And the idea is to work with them to develop to conduct research and to develop materials that will help to serve the various communities that they serve.

And it's just, it's a total labor of love and there's a huge component of it that is [00:08:00] doing, I think, something different than a lot of things are doing because the focus is not on And let's tell girls and boys, don't do this, don't go here, don't say that, but instead to look around more broadly in the environment and see what, who else is responsible here.

And in particular, how is corporate control over these spaces impacting young people's experiences of privacy and equality. In digitally networked environments.

Tamara Wilkinson: Yeah, that's so interesting. It's important because, not just young people, all of us, but young people in particular spend so much time engaging with technology and engaging with the internet.

And it's, I think research coming out of Australia has shown very similar things that young women and, old women really find the internet a [00:09:00] very interesting place. hostile place in some, in many cases, I think. So it's really interesting that you're looking at how these, websites or corporate personalities are influencing that.

Yeah, that's really interesting. Very cool. Thank you. Okay. Jane, you gave an excellent presentation to some members of the Feminist Legal Studies group at Monash a few weeks ago, focusing on a voyeurism case that's currently before the Supreme Court in Canada. Are you able to give our listeners a brief rundown of the facts of the Jarvis case?

Jane Bailey: The Jarvis case came about a teacher in a high school in London, Over a series of months, it would appear being taking photographs surreptitiously of female students using a pen camera and this practice came to the attention of the principal through another teacher, and when the principal [00:10:00] confronted Mr. Jarvis he initially denied that he was, that there was any pen camera in use, but ultimately turned it over and when it was, when the content of the camera were, was reviewed by police they found a number of images many of which were the vast majority of which were girls and one female staff member.

And the And a lot of the photographs were photographs of the young women's breasts. And and the police then laid charges of voyeurism against the teacher. And he, when he, when the case went to trial it went to trial on the basis of an agreed statement of fact. So nobody actually had to testify.

And at the first stage, he was acquitted On the basis that one of the requirements of our voyeurism provision, the one that he was charged under, required proof that he had a sexual purpose for taking the images. And the [00:11:00] court the judge in that case, concluded that he couldn't be certain beyond a reasonable doubt that the purpose had been a sexual one.

Although he did not offer any suggestion as to what other logical reason there could have been. He did, however, that judge find that the girls had a reasonable expectation of privacy in the circumstances, which is another requirement of the provision. And when the case was appealed to the Court of Appeal the Court of Appeal upheld the acquittal, but on the basis of essentially reversing the reasons for decision.

In other words. They concluded that there was no other explanation, but that there was a sexual purpose for the taking of the images, given the overwhelming number of images of young women's breasts. But they concluded that the young women did not have a reasonable expectation of privacy in the circumstances, based largely on an assessment of privacy.

As a being locational. And [00:12:00] so they concluded the girls were in a public space, in a school. It is a space where there are cameras in certain places. And the court concluded that the girls could not have expected privacy reasonably in those circumstances, more or less because they were in a public, they were in a public space.

And so the results were quite concerning from the point of view of the equality, bodily autonomy sexual integrity of of young people in schools. In particular, considering that young people have no choice but to go to school, you're required to go to school up to age 16 in in most provinces.

And of course, obviously, they have no control over the environment in the sense that they can't, they, it's not really an option for them to say, no cameras in the school. They're placed in this. Environment and because of the way the environment is structured suddenly the conclusion is they do not [00:13:00] have a reasonable expectation of privacy.

And so the Crown appealed the decision to the Supreme Court of Canada and we are the case was argued in the spring and we're awaiting the results of the decision.

Tamara Wilkinson: You said you might hopefully hear something quite soon.

Jane Bailey: I don't know. We're hoping. We're hoping to hear soon.

Tamara Wilkinson: Yeah. Yeah. You were involved in appealing the Jarvis case to the Supreme Court, which is pretty amazing.

And I think you mentioned that not only was one of the girls who had their photo taken there at the time, but also your daughters were able to be there to watch you as well, which is so great. Amazing. How did that come about that you got the opportunity to be involved in that appeal?

Jane Bailey: So one of the Equality Project partners is the Canadian Internet Policy and Public Interest Clinic, or CIPIC for short.

And CIPIC is involved as an intervener in many cases before the Supreme Court of Canada. And when the Jarvis [00:14:00] decision came up CIPIC proposed to intervene, in particular to talk about the relationship between privacy and equality, and young people's rights to protection of their privacy and the implications that privacy a determination of a, that there was no expectation of privacy in the circumstances for the bodily and sexual integrity of young people in schools.

And fortunately they asked me to act as co counsel in the intervention and, as they say the the rest is history. It was an amazing experience. I had been a civil litigator before I came to the university 16 years ago. And so I hadn't really been inside a courtroom in about 18 years.

But I dusted off my robes and it was a wonderful experience. There were a number of intervening bodies intervening on the basis of the protection of the the rights of girls and young women to [00:15:00] privacy and equality and more general more generally, obviously, to protect the the privacy and bodily integrity rights of students in schools.

Tamara Wilkinson: Yeah. It's, it's a bit horrific that it got to this point with, obviously, he was acquitted and then acquitted again on appeal, but fantastic that you got the opportunity to be involved in the appeal. That's really amazing.

Jane Bailey: Yeah, you don't very often as an academic get to do that. have such an opportunity to take your research interest and the work that you've done and bring it to bear in such a direct way to a real world problem.

Tamara Wilkinson: Yeah. I hope I get an opportunity like that one day. I'm sure you will. So Jane, thank you so much for joining me today on The Scarlet Letter. It's been really wonderful to hear about your important work, and I very much appreciate you taking the time on your trip down under to come and have a chat.

Jane Bailey: Thank you very much for inviting me. I [00:16:00] really enjoyed it. It's been great.

Tamara Wilkinson: And thank you all for listening to this episode of The Scarlet Letter. You can catch The Game next month on iTunes or on our blog which is found at feministlegalstudies. wordpress. com. And don't forget to subscribe to The Scarlet Letter to make sure you never miss an episode.