Potential Legal Approaches to a Cyberbullying Case

Vol. 17 No. 9

By

Gary D. Nissenbaum and Laura J. Magedoff are principals of the Nissenbaum Law Group, LLC. They may be reached at gdn@gdnlaw.com and ljm@gdnlaw.com.

Cyberbullying is the term generally used to describe a situation in which one person repeatedly uses information technology such as blogs, chat rooms, cell phones, emails, or instant messaging to deliberately threaten, harass, or intimidate another person(s). Cyberbullying includes cyberstalking, sending sexually offensive messages to the victim, monitoring the victim’s online activities, sharing private or intimate information about the victim with others, and infecting the victim’s computer with a virus. With the rapid spread of social networking sites and other Internet communication forums, there has been a tremendous increase in cyberbullying cases both in the federal and state courts. The fact that cyberbullying encompasses such a wide range of behavior can complicate the effort to find a legal remedy.

At the outset, it should be noted that the laws and regulations surrounding cyberbullying are state-specific. An excellent resource for a state-by-state analysis of such laws is maintained by the Cyberbullying Research Center. http://cyberbullying.us/Bullying_and_Cyberbullying_Laws.pdf.

When confronted with a potential cyberbullying case, the key question an attorney must ask is whether the behavior fits into a recognized cause of action. Although the client may have suffered egregiously and be imploring the attorney “to do something about it,” the attorney must carefully weigh the viability of the claim. This analysis usually breaks down into three basic questions:

  1. Did the behavior violate a criminal statute?
  2. Did the behavior involve a student?
  3. Did the behavior constitute a traditional civil tort?

Did the behavior violate a criminal statute?

The most widely used criminal statutes for obtaining redress in this area are the state harassment laws. It is critical that the attorney exhaustively research those laws, with a special emphasis on whether they have been held applicable to cyberbullying through case law. Indeed, many states have amended their harassment statutes to expressly include online activity of this nature. However, even if a particular state has not, there is still the distinct possibility that the conduct would fall within the traditional definition of harassment, and the statute may nevertheless apply.

A client may understandably be concerned that a criminal conviction will not result in compensation for the wrongful conduct (though it certainly may deter future conduct). However, that is not completely true. The criminal law can provide for the imposition of an order of restitution against a wrongdoer through a plea bargain or conviction. Moreover, as a matter of evidence law, a conviction in the criminal context (under the heightened “beyond a reasonable doubt” burden of proof) may be admissible in a civil suit for damages concerning the same activity.

Did the behavior involve a student?

Practically every state in the country has passed some form of student cyberbullying law. Many such statutes require state schools to have specific policies in place for addressing and correcting behavior that may be characterized as cyberbullying. In addition, schools generally are responsible for ensuring that their students are free from enduring harassment pursuant to local civil rights statutes and even state constitutions. A frequent area of controversy is the extent to which schools should be responsible for protecting their students from off-campus and online harassment. There is often no clear answer as to how far the ambit protecting the student extends.

Did the behavior constitute a traditional civil tort?

Despite being perpetrated online, the underlying acts constituting cyberbullying also may constitute a traditional common law tort regardless of whether they emanated from online communication. For example, the typical instance of cyberbullying may touch on harassment, defamation and intentional infliction of emotional distress.

While the nuances of these torts vary from state to state, the basic elements are generally the same. Civil harassment usually involves willful and malicious acts with the intent to cause fear, intimidation or abuse that causes damage. To prove intentional infliction of emotional distress, the victim usually must show that the harasser’s conduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293 (1983). The victim also needs to prove that he suffered sustained financial, physical or psychological injury due to the harasser’s conduct. To prove defamation, the victim usually must show that the defendant negligently or willfully, wantonly, recklessly or intentionally made an untrue statement regarding the plaintiff; published the statement to others; and in doing so, caused him damage.

Not only are these basic common law torts applicable in the twenty-first century context, technical advances also may have exacerbated the tendency to violate them. For example, the ability to hide behind the appearance of Internet anonymity often encourages the tortfeasor to undertake wrongful behavior he would otherwise have avoided. Moreover, the world-wide reach of the Internet may magnify the degree of damage caused by anonymous online conduct beyond that of the typical in person encounter.

Conclusion

The process by which an attorney must determine the most effective approach to finding a legal remedy for cyberbullying is fact-specific. When performing such an analysis, it is important to explore a wide range of possible approaches, including the criminal, statutory and common law tort laws.

Premium Content for:

    Members
Join Now

Already a member? Log In




Advertisement

 

  • About The Young Lawyer

  • Reprints & Back Issues

  • More Information

  • Contact Us