Mary Anne Franks, “Unwilling Avatars: Sexual Harassment in Cyberspace”

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Abstract:
This Article analyzes the growing phenomenon of cyberspace harassment, offering an innovative legal response to it not previously advanced by scholarship on the subject. This Article identifies cyber harassment as a form of “forced embodiment” that reinforces already existing social stratifications. In doing so, such harassment undermines the idealistic promise of cyberspace as a realm of self-creation and liberty from physical constraints. The Article focuses on how the online harassment of women in particular forces women to become “unwilling avatars” in a way that exacerbates existing gender inequality.

Much of the current scholarship on cyber harassment focuses on reputation, privacy, and threats. This article offers a different approach, noting that 1) much cyber harassment cannot properly be characterized in these terms, and 2) legal remedies based on those characterizations impose liberty costs on both the targets of the harassment and the general public. Many cyber harassers do not explicitly defame or threaten women; rather, they make hostile, sex-based attacks on them. This harassing behavior thus falls outside of the reach of legal remedies based on defamation and privacy. Moreover, if one of the principal harms of harassment is that it subjects victims to negative public scrutiny, the fact that privacy and defamation litigation often increases that scrutiny (especially with regard to defamation – because truth is a defense to defamation, harassers facing defamation suits are incentivized to gather “proof” of their claims) undermines the value of the remedy. In addition, legal remedies based on reputation and privacy often themselves implicate privacy rights (e.g. by requiring websites to track users’ IP addresses) in a way that potentially undermines liberty interests.

This Article proposes that for all of these reasons, the cyber harassment of women is sometimes best conceptualized as sexual harassment. As such, legal remedies under Title VII and Title IX should be brought to bear on it. In order to do so, we must recognize that the workplace and school purview of Title VII and Title IX is properly conceived as tracking where the harms of harassment take effect, not the physical location of the harassment. If the harassment’s primary effects are experienced in its victims’ professional or educational lives, it should be subject to Title VII and Title IX. This Article accordingly proposes that Title VII and Title IX be revised to meet the challenge of sexual harassment in the networked age by explicitly including liability for website operators. Such a remedy would incentivize website operators to self-regulate so that the majority of harassment cases could be resolved without ever going to court, and does not rely on tracking techniques that implicate significant privacy interests.

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