What Constitutes Cyberbullying?
Cyberbullying is defined as the use of digital or electronic means to harass, bully, intimidate, or otherwise harm another individual. Common forms include impersonating another individual in an online conversation, such as requesting or sending a nude image of someone pretending to be him/herself texting, or the sending of unsolicited lewd or obscene messages via text, email, or instant message . Typically this involves malicious intent, where the sender attempts to harass, intimidate, or otherwise use the threat of malicious intent in order to achieve some desired effect such as harassment for personal gain or intimidation in order to exert unwanted influence.
The Effects of Cyberbullying on Victims
The psychological, emotional and in some situations, the physical consequences of being subjected to cyberbullying are often times extreme. We can all agree that the severity of those circumstances depends in large part on the resiliency of the individual being victimized. With that said, take for instance the results of a 2004 American Psychological Association study titled "The Nature, Extent, and Psychological Impact of Child and Adolescence Bullying." In this study researchers at the Department of Education and the American Psychological Association researched bullying based on self-report data from victims (students) in grades 6 through 10. The researchers found that the risk of self-reported psychosomatic symptom reports (headaches, stomachaches, nausea, vomiting, diarrhea, sleeping problems and anxiousness) was significantly greater for students who bullied others and also for those who were bullied. The authors of this study concluded that both victims and perpetrators of bulling are at risk for psychological and behavioral problems.
Also in 2004, the Journal of Adolescent Health published an article titled "Bullying, Depression, and Suicidal Ideation Among Urban Middle School Youth." Authors of this study, Jennifer Ballard, Lisa T. Watson, Patrick P. Klosterman and Leslie E. Pierpoint, analyzed the link between bullying and depression, and found that in a national depression study of youth, 18.8% of all students who were bullied reported depressive symptoms while 36.6% of those who were bullied either as a victim alone or as a bully/victim reported depressive symptoms. They also found that nearly one-fifth of students who were bullied reported suicidal ideation and suicide attempts were the number one cause of death for youth ages 10-19.
The results of these studies collectively suggest that the negative effects of cyberbullying can result in unwanted physical, psychological and emotional consequences. Some of the more extreme impacts of the unregulated use of the internet and social media have resulted in youth suicides. In 2010, then Florida State Senator Steve Wise proposed the "Jessica Logan Act" in honor of 18 year-old Jessica Logan who was bullied in connection with her wearing a black dress during prom. The bullying Jessica suffered led her to commit suicide. A tragic case involving refusal by a school to control the bullying of a 12-year-old girl who was a victim of cyberbullying ended with a 2007 United States District Court caselaw precedent in Doe v. Taylor Independent School District, 964 F. Supp. 2d 531 (N.D. Tex. 2013). In this case Jennifer Doe was excluded from school events like pep rallies, football games and dances, because of her refusal to enter into an agreement with the school providing the school with essentially unlimited discretion to do whatever they wanted to her under the guise of protection, thus keeping Jennifer Doe away from the very public events that made up a large part of the high school experience.
Existing Legal Protections Against Cyberbullying
Consider the cyberbully, a subject of growing concern in Canada. A cyberbully may be a minor, a parent, a teacher, a neighbour, a stranger. Whatever their age or status, they enjoy another layer of freedom from legal response. The tools of cyberbullying are readily available and the possibilities seem endless. Anonymity makes it difficult to pin down those responsible for so-called harmless joking that produces harmful results.
The focus on legal action has produced its own layer of antidote. Computer and Internet Crime Commissions and centres have been set up in various jurisdictions. The federal government created the Canadian Cyber Incident Resilience Strategy in 2010. This strategy consists of 5 pillars: awareness, incident management, threat analysis, partnerships and international collaboration and coordination. In early 2013 the government of Ontario introduced Bill 13, which sets out the duties and obligations of school boards with respect to matters related to bullying.
Still, in many places the laws do not catch up to the technology. The Canadian Criminal Code does not address bullying, be it traditional or cyber-bullying. The nearest thing we have to a hate crimes law is Section 319.2, Protection of Groups, commonly called the Hate Propaganda Law.
However, some laws are directed specifically at bullying and cyberbullying. For example, the United States has the PROTECT Our Children Act of 2008, which directs the federal government to establish a national strategy to combat child exploitation and to protect children from the dangers of online sexual predators.
Not surprisingly, the laws of the United Kingdom on this topic are extensive. Sections 10-14 of the Protection from Harassment Act 1997 deals with these offences. Offences relating to the sending of letters with intent to cause distress or alarm are found in Section 1 of the Malicious Communications Act 1988. Section 127 of the Communications Act 2003 states that the offence of improper use of a public electronic communications network is committed if a person sends messages that are grossly offensive. Pursuant to Section 43 of the Regulation of Investigatory Powers Act 2000, an application for an interception warrant may be made for the purpose of preventing or detecting crime, including harassment.
Some jurisdictions view cyberbullying as a form of harassment. For example, a Pennsylvania Appellate Court case of Saxe v. Smith brought a First Amendment challenge to the university’s anti-harassment policy which prohibited "expressive or symbolic acts that intentionally offend or provoke others." They ruled that the policy was unconstitutional. The Court concluded that it was overbroad and would impose liability for a broad range of constitutionally protected speech.
The legislation is in flux. Educators, governments, mayors and local authorities, parents, and of course, students are all trying to figure out the best response and how to enforce it. Over 38 US states have put in anti-bullying laws. National initiatives are also addressing the issue of bullying and suicide, including the StopBullying.gov website.
Cyberbullying: In Favor and Against the Law
Online threats, intimidation, and harassment are sometimes termed "cyberbullying." Several high-profile cases of bullying on the Internet — including suicides — have generated calls for more legal sanctions when cyberbullying rises to hate speech, harassment, or death threats. But not everyone thinks that additional laws or criminal sanctions are necessary. It’s clear that when someone posts a direct threat to kill you on your Facebook page, it’s not just an unfortunate incident of clumsy free expression. It’s terrifying. But does it also require a principled legal response?
Law professor and Schermerhorn Chair of Law at Vanderbilt University James N. Bowerman blogs on this topic at The Legal Satyricon. In 2012 he wrote: "Of course, the Fourth and Fifth Amendments prohibit the entry of coercive or intimidating action by the police if the police do not have a warrant or probable cause. An unsophisticated high-school student, however, may not realize that his or her computer is even talking to the police, much less understand that the message he or she sent across the Internet is being monitored by police personnel. "My own view is that laws, rules, policies and procedures need to be interpreted broadly, such that if there is a credible threat of any kind, law enforcement should be entitled to act. Legislators can tailor the type of rule that they want the police to enforce, but I see no first amendment implications in giving police the discretion to take preemptive action where there is a credible threat. If somebody has threatened to kill me on Facebook, scootch aside Aesop and Socrates: I want the cops involved." The need to reconcile online behavior to current statutes can pose a dilemma for law enforcement agencies. In June 2014 police in California arrested three young men for their involvement in a Facebook page that became a virtual hate crime against LGBTQ high school students. The pages, which the police called "the biggest display of hatred we’ve seen at that school in recent times , " have 900 members. LGBT advocacy groups and others hail the arrests, while the men await their arraignment.
Like the police, school administrators and teachers are on the frontline of confronting the issue of cyberbullying. Long before the 2013 California arrests, the Huffington Post reported that high school administrators had added "Facebook" as a district forbidden item: "Administrators, teachers and students heard about the bullying, which began on a Facebook page called ‘blitzz514’, two weeks ago and met Wednesday to discuss a plan to deal with the threats. Superintendent Tom Torlakson called the online harassment ‘troubling,’ stating in an e-mail to the community, ‘Bullying is not accepted in our schools.’…. "Blitzz514, created by a student at California’s Marjory Stoneman Douglas High School, is an account with a photograph of a muscular man dressed only in red speedos. It is dedicated to ‘killing the fags.’ Separation of Church and state advocate Annie Laurie Gaylor said the page is an example of intolerance. ‘There is one thing to argue for anti-gay legislation and another thing to manifest it in some pretty extremist ways.’ Gaylor added ‘The page is serving the school. Just like anything else that is tolerated will grow.’"
Similarly, advocacy groups have been concerned that current laws do not deal effectively with the prevalence and venues of cyber abuse and harassment. Robert Bates, a 21-year-old law student at Columbia died after falling from the balcony of his fraternity house back in November 2012. Prior to his death, he had become a target of a vicious, anonymous Facebook group, "The Real Course Paths of Bauer Hall," on which members posted profane and sexual comments about Bates. Now, the group has been scrubbed from the internet, but Bates’ family is considering a wrongful death lawsuit against the school. The double-edged sword that is social media continues to evolve as courts, legislature, and advocacy organizations work toward meaningful solutions that balance protections for free speech with safety.
Possible Reforms in Cyberbullying Legislation
Given the prevalence of cyberbullying in teen culture, and the significant harm it can cause, lawmakers have attempted to keep pace by introducing new laws to specifically regulate online conduct. Although some efforts have met with success, cyberbullying continues to fall between the cracks of the law.
Lawmakers have attempted to pass more comprehensive laws regarding all forms of bullying and harassment of minors (including electronic bullying). For example, several states have enacted "sweeps" laws, which enforce or "sweep up" existing struggle with bullying and harassment along with cyberbullying. The purpose of these sweeps laws is to prevent "cyberbullying from falling through the cracks" because of definitional issues; however, it is not apparent that such a unified approach is the best way to tackle cyberbullying head-on. Of course, there are differences in how bullying may be regulated by a school or the government versus a social media company.
Specifically, in the case of a public school, there are two federal laws under which a student may bring a claim based on bullying by other students: Title IX and 42 U.S.C. § 1983. There are also state laws on harassment. These laws merely obligate public schools to provide a discrimination free school environment, so if the harassment does not have an element of "discrimination," some courts have held a school may not be liable under this federal law.
In terms of the social media website’s liability, a recent article recommended that state legislatures look to Section 230 of the Communications Decency Act for potential regulatory initiatives. Section 230 protects providers of interactive computer services from being held liable on account of third party content. In the context of cyberbullying, a social media company could only be held liable for a user’s comments if it participated in developing or creating the offending content.
The authors of the recent article advocate for drawing a distinction between (1) a social media company that allows users to communicate with one another and (2) a medium that allows users to interact with one another but does not itself carry any messages. They argue that the latter may be more appropriate for some sort of disciplinary measure to be applied. However, they do concede that the technology is still developing, and we do not yet know whether it will adhere to either of the above models.
Conclusion: The Balance Between Freedom and Protection
While it may seem like a major infringement on First Amendment rights, I believe the law can and should step in with consequences for cyberbullies. Conversely, there are those who argue that it opens Pandora’s Box and leads to further censorship of the Internet. They say it won’t be long before officials determine what can be posted online or any form of online speech.
The solution lies somewhere in between. We can protect people from harm while also allowing for freedom of speech.
Any line drawn will forever be contentious. We want to protect people. But how, really? I think we all can agree that certain types of cyberbullying need to be addressed. At the very least, the law should step in when someone is being harassed to the point of suicide or harm to self or others. I can certainly get behind that.
The difficulty is drawing the line between freedom of speech and protection from harm. Defamation and the damage it can cause are more easily identified, while offensive memes, false profiles and rumors veer to the gray area of just mean-spirited bullying. It’s almost easier to go after personal attacks on social media through intentional defamation of character.
Setting up an account posing as someone else is another fairly clear issue when it’s done purposely with malice. It’s a little harder with a negative image or derogatory comment about someone else , however. Is that defamation? Or is that just a cruel joking meme? At what point is it enough to warrant prosecution?
Cyberbullying, like schoolyard bullying, often goes unreported. Facebook says they report an average of 20 million pieces of hate speech a week – that’s hate speech only. Just imagine how much average cyberbullying goes unreported.
When it’s unreported, we fail to create a record. Without a record, it’s difficult for authorities to make a correlation between what is happening with the act itself. But as there’s so much happening, at a minimum, we need to make a record.
We do need to have laws governing repeat offenders and habitual offenders. Because these patterns are more easily identified, we can prevent more harm by eliminating cyberbullying in one person, rather than suffering the consequences 100 different times. If more people understood the consequences of their actions, maybe we wouldn’t have as many repeat offenders.
On the other hand, the question remains: how far do we go with this? Cyberbullying is a form of abuse, but is it an actionable crime? This is a slippery slope best approached from several angles. Most importantly, I believe we need to address creating a record and documenting instances of cyberbullying before we turn to the law for punitive repercussions.