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September 27, 2017 Practice Points

Mitigating the Effects of Cyberbullying

By Sathima Jones

By now we are all familiar with the phenomenon of cyberbullying. Cyberbullying is characterized as any harassment that takes place through the use of electronic technology, including devices and equipment such as cell phones, computers, and tablets. Cyberbullying can be done over text, chat, websites, and social media.

Over the course of 2016 and 2017, the media was bombarded with instances of suicides among adults and teens resulting from allegations of victimization from cyberbullying.

Presently, civil and criminal litigation is limited and unequipped to deal with combatting technology-based harassment that ends in suicide. There is a lack of federal law, policies, or school sanctions against cyberbullying itself, which is attributable to the contraindications with free speech (see HR1966). But, on the sovereign state side, all fifty states have some form of statute addressing bullying in general, while forty-eight include specific penalties related to electronic harassment. Out of those that include prohibitions against electronic harassment, twelve to eighteen of them include criminal sanctions.

Although guidelines vary from state to state, what is clear is that the policies in place focus primarily on the school as the first line of defense. For example, in California, Seth's law was passed in 2011 in response to the suicide of thirteen-year-old Seth Walsh, who took his own life after being cyberbullied based on his sexual orientation. Seth's law allows schools to suspend or permanently expel students who perpetrate cyberbullying. On the other hand, Oklahoma takes a different approach with its anti-bullying law, which allows schools to maintain internal records for later police investigation.

In reality, cyberbullying is not just an adolescent issue. For example, in April 2016, 31-year-old firefighter Nicole Mittendorff was found deceased from an alleged suicide as a result of cyberbullying by her coworkers. Similarly, in July 2017, Michelle Carter, a Massachusetts adult was sentenced to up to twenty years in prison for her failure to help after a series of text messages exchanged between her and her boyfriend revealed that she urged him to commit suicide. Legal experts suggest that the verdict, which is now on appeal, is a drastic expansion of criminal law in Massachusetts.

So, what about penalties addressing adult on adult cyber harassment? Well, some states have moved beyond school policy to statewide laws that charge repeat offenders with misdemeanors that vary in classification based on a number of factors, including the victims' age and repetitions of offenses. But, in most jurisdictions, technology-related harassment is tough to pin down with specific statutes.

In regulating cyberbullying, there are obvious implications on the breadth of free speech, which an attorney in this arena must circumvent. Similarly, in prosecuting/litigating suicide cases that result from cyberbullying poses challenges in illustrating a clear chain of causation because the genesis of injuries is self-inflicted harm.

Despite the prevalence of holes in legislature governing technology-generated harassment, practitioners in this burgeoning area can take reasonable steps to effectively document and substantiate proof of cyberbullying.

  1. Maintain all evidence of bullying—keep messages, post, comments, and text messages, along with any ways to document the individuals' harassing messages and their identities (such as screenshots, in the event that #4 below, for example, occurs);

  2. Contact the service provider through whom the offender is harassing the victim;

  3. Be sure to review the service provider's "User Agreement" because many online services, such as Facebook, expressly prohibit harassment. In many cases, if the content host is made aware, the offensive information should be promptly removed;

  4. Check states laws or any established cyberbullying states;

  5. Additionally, explore other causes of action, such as civil defamation, invasion of privacy, intentional infliction of emotional distress, libel, and slander (for civil defamation, bear in mind that the level of fault varies according to whom the victim is—the less famous the victim, the lower the standard of fault).

Sathima Jones, Esq. is an associate at Wade Clark Mulcahy in Philadelphia, Pennsylvania.