Children’s social lives have moved online due to the popularity of the Internet and smart phones. Unfortunately, so did bullying.

Cyberbullying is the use of information and communication technologies (such as the Internet or cell phone) to post or send text, pictures or video that is meant to hurt or embarrass another. Unlike bullying back in the ye olde pre-Internet days:

  • Cyberbullying is often anonymous, as screen names or fake e-mail accounts shield the bully’s identity. Therefore, the bullied individual and schools therefore find it difficult to figure out who the perpetrator is.
  • While bullying used to be limited to a relatively small audience, online bullying can go viral and spread worldwide.
  • Cyberbullying can occur anytime and anyplace so long as the targeted individual and perpetrator have an Internet connection. This is different from pre-Internet days where a bullied child could get a bit of a break when the school day ends.
  • Cyberbullying is often permanent. Communications such as messages, doctored photos and videos get downloaded and sent to others. Given how quickly something can go viral, the bullied individual can’t be sure that every copy has been deleted.

In the past few years there have been several highly publicized stories of teenagers committing suicide because of online bullying. The public outcry over these suicides have prompted legislatures all over the world to create laws combating the issue. Those legislation and laws have fallen into one of three categories:

  • Laws requiring schools to create policies or update existing bullying policies to include online bullying.
  • Updating existing criminal law to include online communications.
  • Creating new laws that specifically target or criminalize cyberbullying.

Unfortunately for cyberbullied children, their parents and school authorities, these legislation and laws are limited as to what can be done to stop online bullying. When discussing the limitations, the focus will be on American law.

Creating or updating school policies. Most U.S. states have proposed or enacted laws requiring schools to create or update existing policies on bullying to include online bullying. The problem is that schools may only discipline students for incidents that occur in school settings (e.g. when students are on school grounds, coming to and from school or a school sponsored activity, during school hours, or during a school sponsored activity). Some states allow schools to discipline students for off-campus cyberbullying if there is a “sufficient school nexus,” meaning that the electronic communications meant to bully another “sufficiently disrupts” the school environment. However, American courts are very protective of an individual’s right to free speech. Because of this, courts have very rarely held that cyberbullying-related communications have been sufficiently disruptive. Therefore, in many cases schools simply do not have the authority to punish students for online bullying.

Updating existing criminal law. Japanese, British and Canadian authorities have prosecuted children under various criminal statutes, including nuisance, obscene communications and communicating threats. In the U.S., individuals have been charged for particularly severe instances of bullying, but authorities had often been unable to prosecute those cases. This is because criminal statutes for laws such as harassment and stalking (the two most common charges in such cases) generally specify what types of contacts a perpetrator must conduct in order to be prosecuted for those crimes. Under this approach, legislatures have added electronic communications to the list of the types of contacts.

However, law enforcement authorities for the most part would only be able to bring charges against the most severe cyberbullying cases. Most instances of cyberbullying will not reach the high standard required to be considered criminal harassment or stalking, as criminal harassment and stalking often require that the victim fear that he/she will be physically harmed, among other things.

Creating new anti-cyberbullying laws. There are two types of such laws. The first type is known as the Internet real-name system and was enacted in South Korea and China. This approach requires website operators to collect users’ identifying information before allowing users to post comments online. If there’s a lawsuit or criminal charge related to the comments, the website operators must turn over the user information.  However, particularly in South Korea, where the law has been overturned, commentators and politicians criticized this approach for, among other things, raising issues of identity theft and fear of suppressing free speech.

The second type is to create laws specifically criminalizing cyberbullying; for example, several Missouri towns and cities enacted ordinances in 2008 in response to the suicide of Megan Meier, who was bullied online by a mother of a former friend. So far, the main issue is how such statutes should be drafted. American courts have held that some of the laws are unconstitutional because they are too vaguely written. For example, when striking down parts of the state cyberbullying law, the Missouri Supreme Court unanimously held that:

[The statute’s use of the terms] “Repeated,” “unwanted,” and “communicate” are simply words that can be applied too broadly…. individuals picketing a private or public entity would have to cease once they were informed their protestations were unwanted. A teacher would be unable to call a second time on a student once the pupil asked to be left alone…

Unfortunately, all this means that cyberbullying victims and their families have limited legal recourse to prevent it. If you, your child or someone you know have been the target of online bullying, let us know in the comments how you resolved the situation.

Information on cyberbullying laws in each U.S. state can be found here.

Note: This post is not (nor is it intended to be) legal advice. It does not create an attorney-client relationship. If you have a specific case, please consult an attorney for individual advice. Please also do not send or post any confidential information.

Photo via flickr

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