What is Cyberbullying?
According to the National Bullying Prevention Center, cyberbullying can be defined as "Behavior that is repeated and unwanted, and involves an imbalance of power or strength. It is intentional, aggressive, and can be carried out by kids, teens, and adults. Cyberbullying can occur 24 hours a day/7 days a week." In addition, according to StopBullying.gov, "[c]yberbullying is when bullying occurs through technology, such as:
• Email
• Social media (Facebook, Instagram , and Twitter, etc.)
• Text messaging
• Cell phones
• Online forums and chat rooms
• Websites."
Like its traditional bullying counterpart, cyberbullying has the potential to cause significant emotional distress (and even suicidal thoughts and actions). Another concern is that this form of bullying occurs faster and amplifies the number of people involved. In addition, the anonymity offered by technology can complicate finding and managing the person responsible.
Laws Against Cyberbullying – Federal and Individual States
Determining whether acts of cyberbullying violate criminal statutes will depend on the specific content of the conduct, as well as the laws in the student’s state. In coordination with parent-teacher associations, many states have revised their anti-bullying legislation to specifically address cyberbullying, including Maryland, North Carolina, South Carolina, Virginia, and West Virginia.
Maryland was the first state to enact legislation addressing cyberbullying of public school children. The law, enacted in 2009, provides that it is a misdemeanor for a student to engage in electronic harassment, intimidation, or bullying by making a credible threat to an individual through a form of electronic communication. The law further states that the prohibited conduct includes knowingly creating and sharing an imitation of a web page of a public school with the intent to defame the school or school officials or recommending the alteration of any such web page.
On October 2, 2012, North Carolina became the second state to address cyberbullying. The Children’s Internet Protection Act and Children’s Online Protection Act require school boards to maintain and enforce an Internet safety policy that addresses the prevention of cyberbullying.
In 2012, South Carolina amended its bullying laws to prohibit computer or Internet-based bullying conducted through use of an electronic device or over means of Internet access when the bullying occurs on school property, at a school function, or on a school bus. Virginia law prohibits harassment by computer or electronics, and West Virginia law prohibits the harassment or intimidation of students by electronic means.
Federal anti-harassment legislation, such as Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act of 1990, are implicated in cases of cyberbullying that involve the harassment of students.
Criminal Offenses
Cyberbullying can lead to a host of criminal charges, depending on the severity of the bullying and how it ultimately affects the victim. In most cases, these charges will be filed by law enforcement, rather than by the victim directly. Some common potential charges include:
Harassment
Harassment is a common charge for abusive or threatening communications. It could be a simple text message that is aggressive or disturbing in its nature, a series of lewd phone calls or any other general communication intended to disturb or threaten a specific person. Even if the target of the harassment knows the bully personally, if the bully communicates with him or her in a manner meant to annoy or alarm, it could be harassment.
Stalking
Stalking involves any unwanted behavior intended to cause harm to another person. While harassment and stalking has some similarity, the key difference is that while harassment could be a series of communications aimed toward a person, stalking constitutes more physical behavior. There are stalking laws that apply to offenses that occur both in-person or through a variety of electronic mediums. A person who harasses another person through private messaging on a social media platform could potentially be charged with stalking.
Threats
If a person makes a threat against another person, they could be charged with making a threat. Making a threat can be a verbal threat or a threatening or lewd electronic communication. Making a threat is a second-degree misdemeanor in Maryland, carrying a maximum penalty of 60 days in prison. A threat that causes the person to fear serious physical harm can be considered a third-degree felony, carrying a maximum five-year imprisonment.
Civil Liability
Cyberbullying may give rise to a host of damages in civil courts. Although it is up to the courts to determine if a particular set of facts even gives rise to a possible cause of action, the following are some causes of action that courts may consider on a case-by-case basis. Many forms of cyberbullying may give rise to an action for defamation, such as email containing false allegations of criminal activity or suggesting that someone has AIDS. Courts have found that a statement is defamatory per se if: a) the statement alleges that the plaintiff is guilty of a crime for which the law prescribes a punishment of imprisonment in a state prison; b) the statement alleges that plaintiff has an infectious, contagious, or loathsome disease; c) the statement alleges that the plaintiff is unfit to be trusted in carrying on his business or profession; d) the statement otherwise tends directly to injure the plaintiff in respect to his office, profession, trade, or business, either by imputing to him general disqualification in those respects which the opinion or feeling of respectable persons necessarily deters attention. Depending on the facts of each case, hyperlinks can be defamatory. If the hyperlink does not adequately refer a user to the original source of the information and states a falsehood about the subject, there could be liability. For example, the defendant posted a hyperlink to an indictment against the plaintiff, without adequately informing the reader that the plaintiff had never been convicted of any crime. This text, coupled with the title "A Real Lawyer Scandal," was sufficient to support a defamation claim.
A cyberbully may be liable for IIED when his acts "are intentional or reckless and they are extreme and outrageous, and they cause emotional distress so severe that calamitous consequences may not be expected to occur from handling of it by a reasonable person." To this end, courts have found that criminal threats are sufficiently outrageous to establish IIED liability. For example, in one case, a defendant’s threat to rape the plaintiff’s daughter was so outrageous that it constituted IIED as a matter of law. Likewise, threatening to disclose a private fact about another person that is offensive to a reasonable person may be sufficient to support an IIED claim. In another case, the court found that violent threats against the plaintiff’s family posted on the internet were sufficiently outrageous to support an IIED claim. However, not all distressing comments made online will give rise to such liability. For example, one court found that writing in a chat room that a fellow classmate had "logos all over her body" as "ugly" was insufficient to support a claim of IIED. Further, insult, profanity, and false statements cannot support an IIED claim. Under New York law, to recover under a prima facie tort action, the plaintiff must show "(1) intentional infliction of harm, (2) without excuse, (3) by an action which would otherwise be lawful, (4) specifically directed at plaintiff." In an article entitled "Cyber Defamation," it is suggested that a cause of action for prima facie tort may be successful in certain instances of cyberbullying. Specifically, it may succeed in "cases of physically intimidating websites set up to frighten away customers or clients from a business being operated by the victim."
Consequences for Minors
The legal consequences for cyberbullying a child or adolescent can be quite serious, even if the perpetrator of the bullying is a minor. In many cases, parents erroneously believe that their child can do no harm as long as they are a minor. This is simply not true. As a parent, it is vital for you to hold your child responsible for their actions. If your minor child is formally accused of cyberbullying or stalking, you and your child will be contacted by the police. Even if your minor child is not arrested or charged with a crime, there may be a restraining order placed against them. Your minor child could also get arrested or charged with a crime. If this happens, your child’s photo may be made public online. Some people might obtain copies of the arrest report and post it on the Internet for all to see. Additionally , you or your child could be charged with a civil tort. If the victims of your child’s harassment or bullying file a petition with the juvenile court system, your child could face serious civil charges. If the court determines that your child has harassed, stalked, or bullied another child, they may face juvenile court. Juvenile court proceedings determine the most appropriate way to treat the juvenile in a court of law. If your child is charged with harassment or stalking, a trial will be held to determine whether they are guilty of the accusations. If they are found guilty, your child could face stiff penalties for their actions, including juvenile detention. Cyberbullying is a serious issue that carries with it some equally serious legal ramifications. Parents and their children must take these actions seriously and do what they can to prevent it from occurring.
Educational Impact and Lifelong Implications
The negative impact of a charge of cyberbullying can extend into education and career opportunities. Cyberbullying charges can lead to expulsion and termination. For instance, the Illinois Anti-Bullying law allows a school to expel a student upon a finding of cyberbullying, even if the bullying took place away from school on a device not paid for by the school. Even in instances where the school decides to carry on with the rest of the semester, the accusation of cyberbullying can influence the student’s overall grade, as well as the relationship with faculty and peers. Likewise, an accusation or conviction of cyberbullying may have a serious impact on whether or not a student will be able to get into his or her top school choice in terms of graduation and expulsion. A cyberbullying conviction may also interfere with a student’s eligibility for financial aid, or result in the loss of a scholarship.
What Are the Victims’ Legal Options?
Victims of cyberbullying may find some comfort in the fact that it is a criminal offense. In some jurisdictions, such as New Jersey, cyberbullying is a crime. Regardless of whether cyberbullying is a crime where you live, if you are a victim, you may sue your perpetrator (or their parents if they are a minor) for emotional distress. There are also statutory causes of action for stalking and invasion of privacy available to victims.
There are statutory remedies available to victims of cyberbullying under anti-harassment statutes. Under the New Jersey Anti-Bullying Bill of Rights Act, school districts are required to implement anti-bullying policies, including procedures for reporting acts of cyberbullying. The anti-harassment, intimidation and bullying bill provides for the imposition of administrative resourse, including written warnings, parental notification, counseling with the child, to more severe consequences including suspension and expulsion. The New Jersey Anti-Stalking Act, N.J.S.A. 2C:12-10, provides both civil and criminal recourse for victims of stalking. The statute provides for criminal sanctions against a continued course of unwanted conduct, intimidation, following, or approaching a person with the intent to perpetrate a specified act, including harassment, invasion of privacy, video voyeurism, criminal coercion, and criminal trespass. Civil stalking under the statute also protects against other behaviors directly targeting the victim such as non consensual accidental contact by a telephone or electronic device intended to alarm or seriously annoy the victim and accomplishing this by threat, intimidation, taunting, abuse or vigorous pushing . N.J.S.A. 2C:12-10.3. Under the Act, a parent or legal guardian of a minor can file an action on behalf of the minor who is the victim of stalking, or the parent or legal guardian of a minor victim of stalking may obtain a restraining order on the minor’s behalf.
Victims may also be entitled to injunctive relief, which can be obtained by applying to the Court for a temporary restraining order and a permanent injunction depending on the circumstances. A permanent injunction is a court order prohibiting the defendant from engaging in future conduct of a specified type. The plaintiff must show there is no other adequate remedy available for the harm being caused. The plaintiff must establish either that: (a) the plaintiff does not have an adequate remedy at law; or (b) even if the plaintiff does have an adequate remedy at law, that remedy is insufficient or less convenient, appropriate, and efficacious than the remedy of an injunction. In determining whether to grant injunctive, the court considers the following factors: (1) the likelihood that the plaintiff will prevail on the merits of the claim; "(2) the threat of irreparable harm to the plaintiff if the restraints are not issued; (3) the possibility of harm to other interested persons from the issuance of a preliminary injunction; and (4) the interests of the public." A permanent injunction may be well suited for cyberbullying that continues over time. It may be an appropriate remedy where the defendant is a minor who has been expelled or otherwise prohibited from using the internet but continues to misuse the internet through the creation of false accounts on social media sites.
