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Edward Dragan

Cyberbullying and the Law

By: Dr. Edward Dragan
Tel: (609) 397-8989
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Cyberbullying is one of the fastest-growing problems facing families and the people responsible for protecting our children: school administrators, lawmakers and law enforcement officials. Cyberbullying is such a new frontier, the laws that define and police it are, in many places, weak to nonexistent. Its "sudden" pervasiveness and severity is now shocking people into action as evidenced by the rash of suicides making national news and the resulting public outcry. Prosecutors are now trying to indict cyberbullies with the highest charges possible, but in some of the cases where the victim committed suicide, the punishment allowed by current laws is woefully insufficient.

It will take years of legal cases to establish penalties that match the severity of these crimes. Parents can be held accountable for their children's online activities if those activities are against the law. Since cyberbullying among children is almost always connected to schools for obvious reasons, the culpability of educators and administrators is being closely examined, with their future consequences likely to be more severe.

Changing State Laws

Even so, legally this is still a gray area. When a child is bullied through the Internet or other electronic means, it can be harder to hold the school accountable since it doesn't occur on school grounds. If the bullying involves the use of a school computer in the library the school can be held to its policy governing the use of computers in school, but when the bullying originates from a cell phone in a child's bedroom, the school often cannot be held directly responsible. Some states require schools to include cyberbullying in their anti-bullying policies, but mandates differ from state to state.

Not all state laws require schools to include cyberbullying in their anti-bullying policies. In states where it is required, the school has to address it in its policy. While some schools hold parents responsible for monitoring their children's cyber-behavior during after-school hours, many schools have begun addressing the issue within their own walls. Laws in many states are changing rapidly; here is what some state laws say about cyberbullying:

  • Arkansas recently passed legislation that allows school officials to take action against cyberbullies even if the bullying did not originate or take place on school property.
  • Idaho school officials may suspend students who bully or harass other students using a telephone or computer.
  • Iowa passed several laws requiring schools to develop anti-cyberbullying policies to cover bullying "in schools, on school property or at any school function or school-sponsored activity."
  • Louisiana can charge anyone age 18 or older who cyberbullies a younger person with "cyberstalking," punishable by a fine of $500 fine or 6 months in jail. Kids 17 and under who are caught cyberbullying will have to undergo counseling.
  • New Jersey's already-tough law was recently amended to include bullying that takes place by "electronic communication." This gives schools additional power to dole out punishment for actions that occur off school grounds.
  • Oregon laws expand the definition of cyberbullying to include actions that "substantially interfere" with a child's education.
  • New York set up a system to help police and school officials investigate claims of cyberbullying, determine the circumstances of each occurrence, and prosecute or punish the offender.
  • Vermont added a $500 fine for cyberbullying offenses to its already tough bullying laws.

The latest information on cyberbullying laws can be found at www.bullypolice.com.

If a state and school do not address cyberbullying by law or policy, the local police or prosecutors office can be contacted to determine if other laws can be invoked to press charges. Always contact the police immediately if a child's safety is in danger - including threats of violence extortion, obscene or harassing calls, stalking, sexual exploitation, or photographic invasions of privacy.

Contacting Law Enforcement

Some cyberbullying is a violation of criminal law. As a general guide, law enforcement officials should be contacted when cyberbullying involves:

  • Death threats or threats of violence to child or property
  • Excessive intimidation or extortion
  • Threats or intimidation that involve bias, such as those based on race, religion, gender, or sexual orientation
  • Any evidence of sexual exploitation

Cyberbullying may also meet the legal standard for intentional torts, which are intentional wrongdoings. In most states, parents of the cyberbully can be held financially liable for intentional torts committed by their children. When parents find out that they can be held liable for their child's cyberbullying on the Internet or over the cell phone, it is likely that they will get their child to stop.

The following are the commonly accepted legal elements for intentional torts:

Defamation

  • Publication of a false damaging statement
  • The statement was published
  • The statement identified the victim
  • The statement harmed the victim's reputation in the community (this includes the school community)
  • The person committing the defamation did something he should not have done. (Keep in mind that truth is a defense. If what a person said online is true, he can defend his actions.)

Invasion of Privacy

  • Public disclosure of private facts. (A person publicly discloses a nonpublic detail of another person's private life when the effect would be highly offensive to a reasonable person.)
  • False light in the public eye. (When a person is placed before the public in a false light and this false light would be highly offensive to a reasonable person.)

There are some defenses to accusations of invasion of privacy. If the facts are "newsworthy," they may be revealed and it is judged that the victim gave consent. Minors are not capable of giving legal consent.

Intentional inflection of emotional distress

  • When a person's intentional or reckless actions cause extreme distress
  • The actions must be outrageous and regarded as utterly intolerable in a civilized communityi

There have been a number of lawsuits filed associated with cyberbullying. Lawsuits must meet the legal criteria for intentional torts, or they may be tossed out of court.

State laws are not about whether schools have a duty to protect students from cyberbullying when it occurs off campus. Criminal laws are well established. However, even in the context of applying criminal law to prevent cyberbullying and protect kids from harm, what's unacceptable differs from jurisdiction to jurisdiction, case law is superseding old standards, and new laws are still being defined, tested, and revised as more of these cases are tried.

Taking Civil Action

Depending on the manner in which cyberbullying is occurring, school administrators may be in trouble if they do - or if they do not - respond.

Schools have been held liable for harm caused by on-campus harassment and bullying that resulted from educator negligence. However, the standards under which schools and educators can be held responsible vary from state to state. Certainly, schools have a duty to ensure that students are using school communications networks or mobile devices in a way that does not harm other students. The question that would be raised would be whether the school acted reasonably and prudently in light of what it knew.

If parents file a civil lawsuit against a school for negligence and breach of its duty to protect their child, the factors that would be considered include: state law; the district's policies; the school's efforts to communicate those policies to students; the training of staff about those policies; the manner in which the district allowed students to use its communications network; the degree to which the district supervises and monitors student use of those devices; and the procedures established for reporting and addressing cyberbullying concerns.

First, the parents' attorney needs to establish that the school has a duty to protect the child under the specific circumstance. There may not be a duty under certain situations or, in some states, for the school to police cyberbullying off campus. Next, the attorney needs to prove to a jury that the school had notice that the bullying was taking place but didn't appropriately and effectively respond - and that the bullying continued or got worse. Finally, the attorney will need to persuade the jury that the school's negligence caused harm to, or at least contributed to the harm of, the child.

Because a significant amount of cyberbullying occurs off-campus, the school may have less authority to respond to cyberbullying with a traditional disciplinary response, depending on state law and local board of education policy. For totally off-campus speech - that is, speech where the only school connection is that students from the school are involved - school administrators cannot intervene unless there is a substantial and material threat of disruption to the educational process at the school. This standard is likely to be met only in cases that would justify contacting law enforcement officials.

There may be other off-campus cyberbullying situations, however, in which administrators may be compelled to respond. Parents may be able to hold the school accountable to respond if:

  • A student takes a picture of another student at school, then posts it online in an abusive or unflattering manner
  • The cyberbullying is related to face-to-face bullying that occurs at school or at a school-sponsored activity

Even if the school cannot impose discipline on cyberbullies, there are many other ways that the school can help. Parents can ask administrators to provide support and assistance to deal with the situation, get counseling for the children involved, etc.

Ending this Tragic Epidemic

The effects of cyberbullying can be more severe than those of "traditional" bullying because a child who is targeted may see no escape, no place to hide. Because of the scope of the Internet, there can be many more witnesses to cyberbullying. This form of bullying creates a different type of problem because kids who use computers and cell phones to harass another child cannot see or hear the effects of their actions right away and can do it anonymously.

Victims of bullying often experience years of constant anxiety, low self-esteem, and insecurity. And yet, as we have seen in so many stories, bullying problems are too often ignored or taken lightly. When a child feels as if nobody wants to help her, it can manifest in violence, petty criminal activity, falling grades, or social isolation. The effects of cyberbullying, where abusive actions are seen by hundreds of people and the group dynamic snowballs rapidly, can devastate a child and family. When children take their own lives because of having been bullied in cyberspace, we know it's a problem that has gone too far. Laws, school policies, parental supervision and societal attitudes need to change to be more effective in ending this tragic epidemic.

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Dr. Edward Dragan, provides education expert consultation for high-profile and complicated cases. As an educator and administrator, he has more than 35 years' experience as a teacher, principal, superintendent and director of special education. He also has served as a state department of education official.

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