Cyberbullying and the Law

a female police officer smiling at night with her patrol car in the background.

When someone is hurt or someone they love is hurt, or they are angry and embarrassed, they want justice. And to many, “justice” means courts, lawyers, police, jail and judges. But most cyberbullying actions are not crimes. And most of the time the police aren’t called or don’t take any action after the initial report. Schools, parents and cyberbullying targets usually end up working it out, getting past it or Even if most cyberbullying doesn’t result in criminal prosecution, one of the first questions everyone asks when cyberbullying occurs is “what’s the law?” To answer that, you need to understand how law works in the US, Canada and the UK, as well as many other countries based on the UK legal system.

Laws are complicated, so we made it as simple as possible and left out some details. Remember that if you have real legal questions, you should contact a lawyer. This isn’t legal advice. It’s just cyberbullying legal information.

What are the Different Kinds of Laws and Legal Approaches in General?

There are several different ways to approach cyberbullying legal “justice.” Some may involve courts and possible jail, paying fines or damages or a special process that allows the person a second chance or a way to avoid court entirely. Some others may involve school disciplinary actions, losing social media or gaming accounts, probationary access to social media or being prohibited from using the Internet entirely.

  • Crimes: Criminal laws involve government bringing a case against an individual. If found guilty, they may end up in jail, depending on the crime. Rarely are minors sent to jail, though. Instead they may be sent to “special schools” or reformatory centers.
  • Juvenile Justice: Minors are generally charged with juvenile delinquency instead of a specific crime. It’s a broader view of criminal activity. If found guilty, they may be put in a juvenile home or institution. Or, often they are given probationary supervised digital use or prohibited from accessing the social side of the Internet. (Schoolwork, work from home, etc. are typically excluded from any prohibition.)
  • Civil Action: When someone hurts you, but it’s not a crime, you may be able to sue them in court in a civil action. The judge may make them do something, stop doing something or pay money.
  • Civil actions do not involve prosecutors or jail. Claims are brought seeking money “damages” or injunctions (orders to make someone stop doing something (such as contacting the target), or to compel them to do something (such as taking nasty messages down)).
  • Account Suspension or Termination: When you check the box for an online account, you enter into a contract to follow their rules. If you break those you may lose your account or have it frozen. Some put you on a probationary period and require that you prove that you know and agree to follow the rules when it’s over.
  • School Discipline: In some cases, school authorities may give detention, suspend or even expel a student for cyberbullying other students or harassing school personnel or teachers. They can also remove them from sports teams, student council or prevent them from attending events.

    In certain jurisdictions, the school’s authority over what the students do from home or off premises may be limited. But agreements, where the parent agrees that the school may treat off-premises launched cyberbullying as those it had occurred at school, are a work-around.

    Diversionary Programs: Sometimes when a crime is committed, instead of holding a trial, the judge may allow the person a second chance. If the aggressor completes the program satisfactorily and has not engaged in other criminal behavior during a set period of time (usually 1 year) the case is dismissed. These programs have different names depending on the jurisdiction and in some cases include restorative justice programs. (Restorative justice deserves an article of its own. And is covered in detail in that article.)

    Our founder, cyberlawyer Parry Aftab created a program using restorative justice principles called “Clean Up the Mess You Made.” It is particularly effective in a school or organizational setting. [link to the resources page]

Cyberbullying and the Law (The US Legal Framework)

[Law Graphic][make it interesting and easy to read plz]

When someone is hurt, or they are angry and embarrassed, they want justice. And to many, justice means courts, lawyers, police, jail and judges. But most cyberbullying isn’t a crime. And most of the time the police aren’t called or don’t take any action after the initial report. Schools, parents and cyberbullying targets usually end up working it out or getting past it.

Even if most cyberbullying doesn’t result in legal action, one of the first questions everyone asks when cyberbullying occurs is “what’s the law?” To answer that, you need to understand how law works in the US, Canada and the UK, as well as many other countries. Laws are complicated, so we made it as simple as possible and left out some details. Remember that if you have real legal questions, you should contact a lawyer. This isn’t legal advice. It’s just cyberbullying legal information.

What are the Different Kinds of Laws and Legal Approaches? section header

There are several different kinds of cyberbullying legal approaches. Some may involve courts and possible jail, paying fines or damages or a special process that allows the person a second choice or a way to avoid court entirely. Some others may involve school disciplinary actions, losing your social media or gaming account or the right to use the Internet entirely.

Crimes: Criminal laws involve government bringing a case against an individual.  If found guilty, they may end up in jail, depending on the crime. Rarely are minors sent to jail, though.

Juvenile Justice: Minors are generally charged with juvenile delinquency instead of crimes. If found guilty, they may be put in a juvenile home or institution.

Civil laws involve lawsuits, When someone hurts you, but it’s not a crime, you may be able to sue them in court. The judge may make them do something, stop doing something or pay money.

Account Suspension or Termination: When you check the box for an online account, you enter into a contract to follow their rules. If you break those you may lose your account or have it frozen.

School Discipline: In some cases, school authorities may give detention, suspend or even expel a student. They can also remove them from sports teams or prevent them from attending events.

Diversionary Programs: Sometimes when a crime is committed, instead of holding a trial, the judge may allow the person a second chance.

Is Criminal Prosecution The Only Option with Cyberbullies? section header

There are several different ways a court, the prosecutor or the police can give a cyberbully a second chance without making them face criminal prosecution or juvenile justice proceedings.

These are called “alternate justice methods.” The may range from community service, to peer-justice groups, restorative justice programs or adjourning the case for a year to see if the cyberbully stays out of trouble. If they stay clean, the charges may be dropped.

Prosecutorial Discretion: The prosecutor may decide that this particular defendant or case shouldn’t be brought to court and not charge them formally with a crime. Sometimes they will make conditions, like requiring apologies, counseling, do community service or making someone fix the damage they created.

Delayed Adjudication – The judge may permit the person being charged avoid a trial and will wait and see if they person stays out of trouble for 6 months or a year. If they do, their case is dismissed at the time.

Peer-Adjudication – The judge may allow the person being charged go through a special process run by other young people to determine what should happen and any punishments.

Restorative Justice – The judge may order a restorative justice program instead of a trial and criminal prosecution. Restorative justice is designed to help make things better, to help the person feel like they received justice. There are traditional restorative justice models and Parry’s Clean Up the Mess You Made.

More Boring Legal Stuff: section header

There’s more to understanding cyberbullying and the law than the different legal approaches. These include criminal defenses, elements of a crime (the things that make up a crime) and different laws that might apply depending on what happened, where and how.

[subheader] Defending Against Cyberbullying Criminal Charges:

There are two major ways to avoid cyberbullying legal charges. These involve the protection of constitutional rights or “self-defense.” Just know that it’s different than what you see on TV.

Constitutional or Free Speech Protections: In the US, free speech is covered by the US Constitution. In other countries, it may be covered by other laws or legal documents. Free speech usually only keeps the government from doing something to prevent “protected speech.” Certain things are “protected speech” and usually involve political opinions. Other things are not protected, like threats.

In the US, if the person is charged with cyberbullying criminally, proving that the actions were “protected speech” may prevent the prosecution or reverse a guilty verdict. But, free speech doesn’t mean you can say and do anything you want. And most cyberbullying is not protected by the US Constitutional.

Self-Defense: In the US if you do something to defend yourself against harm or protects someone else from harm, you may be able to be forgiven if you did it in “self-defense” or “in defense of others.” But “they started it” isn’t self-defense.

What if There Isn’t a “Cyberbullying” Law in Your Jurisdiction?

Few jurisdictions have laws criminalizing “cyberbullying.” So when prosecutors are faced with serious cyberbullying, they break down the activities and try to find a criminal law that fits at least some of the actions constitutiong cyberbullying.

The Elements of a Crime:

When you seek to discover which laws might apply to punish the cyberbully, you need to think about the elements of the cyberbullying incident(s). “Elements” are the different things that have to happen before a crime occurs.

The Legal Elements of a Crime That May Apply to Cyberbullying:

When you look at cyberbullying from the legal perspective, break it down to its elements:

  • Is it threatening?
  • Is it defamatory?
  • Is it targeting teachers or school administrators? (Remember this isn’t “cyberbullying” under our definition, but it is ”cyberharassment” given the adult’s involvement.)
  • Was it sent from school computers, during the school day, from a school-sanctioned event, or promoted in school?
  • Was it from a home computer, off-school premises, and not involving a school sanctioned event?
  • Has the person identified themselves?
  • Was it sent while posing as someone else?
  • Was it sent anonymously?
  • Was it sent only to the target or was it publicized?
  • What device was used?
  • Who owns or legally controls that device? (Such as someone’s cellphone being grabbed when they weren’t looking.)
  • Does it involve intimate images, real or fake?
  • Is it repeated? If so, how often?
  • Did they break into the target’s online account?
  • Did they have legal access to the target’s password (because it was given to them or stored on their computer)?

Aside from a Finding Criminal Elements, What Other Kinds of Laws Might Apply to Cyberbullying?

The Different Kinds of Laws that Might Apply to Cyberbullying include:

 

  • Criminal laws;
  • Constitutional and civil rights violations (depending on whether the state gives private rights of action);
  • School rules and regulations;
  • Regulatory agency regulations;
  • Hate laws;
  • Defamation;
  • Illegal intrusion laws;
  • Terrorism laws;
  • Hacking-related laws;
  • Extortion;
  • Sexual exploitation laws;
  • Dissemination, production, or possession of obscenity or child pornography;
  • Privacy laws;
  • Terms of Service and codes of contact on gaming and social media sites or digital communication providers;
  • Theft, vandalism, and criminal trespass;
  • Misappropriation;
  • Misrepresentation; and
  • Harassment and bullying/cyberbullying-specific laws.

How Much Can a School Do to Discipline a Student Involved in Cyberbullying?

Depending on the jurisdiction, what written policies have been signed by the students and their parents, and whether the school is a public state school or a private non-state supported school, the school may also be able to discipline the students, expel them, or suspend them if they are found to be cyberbullying others.

In the US, where the First Amendment applies to many instances of “speech” the law gets tricky. Schools have broad authority, mirroring a parent’s authority and may tak action that would otherwise be protected by the First Amendment. Protecting the students during school hours and on the way to and from school. But even then, cyberbullying activities that take place outside of school may not fall within the school’s legal jurisdiction.

Think of it this way – if two students get into a fist fight on a Sunday at a family party, should the school be able to discipline them on Monday morning? Does it matter if the fighting continues during school hours, or the hostility disrupts the school’s educational activities?

US Law: The Limit of a School’s Authority—Off Campus and After-Hours Challenges

When a school disciplines a student for creating a website or profile, posting a message online, or sending a digital communication (text messaging, instant message, e-mail, etc.) off school grounds and outside school hours, it is treading on very dangerous legal ground.

The websites and messages vary from school/administration/teacher/student bashing, to cyberbullying and harassment of fellow students or teachers, to fights being broadcast online on MySpace or YouTube, to sending vulgarities and threats, to encouraging others to hurt or kill someone, or threatening to do it yourself. Sometimes the students are just behaving badly, or are rude and hurtful, and sometimes they are committing serious crimes, including hacking, identity theft, vandalism, assault and battery, and targeting victims for attacks by hate groups and predators.

In the United States, cases have challenged the school’s authority in many states and federal jurisdictions under Constitutional and procedural grounds. Although the decisions conflict, there is some guidance from the U.S. Supreme Court on free speech issues in schools and schools have been given more leeway recently. The last definitive line of cases were largely decided during the Vietnam War. (The more recent Supreme Court case has given some vague guidance, but nothing definitive.)

Most other issues will be resolved by lower courts and the law will vary depending on the state or federal district or circuit in which the school is located. So, before taking action, it is essential that the school district seeks advice from knowledgeable counsel in this field. The normal school district lawyer may not have the requisite level of expertise to advise on this, and a Constitutional or cyber free speech lawyer may have to be retained.

There are a few generalizations we can provide which can give some general guidance. However, these cases are very fact-specific and the facts in your case may differ from those in the cases already determined in your jurisdiction.

  • Clear threats: If there is a clear-cut threat (one that is seen by both the person making the threat and those who have seen it or received it), the school is generally entitled to take action, including suspension and expulsion.
  • Clearly disruptive of school discipline: If the school had proof that the speech has or will disrupt school discipline, the school has a better chance of succeeding. Ungrounded fear or speculation is not sufficient to support the school’s burden.
  • In-school activities: If the student is bringing in print-outs of the website, or promoting other students in school to visit the site, text-messaging during school hours, or if the student accesses the website while at school or creates or works on the website from school, there is a greater likelihood that the actions will not be deemed out-of-school activities and would fall within the school’s authority.
  • School-sponsored activities: If the website belongs to the school or is created as a school-sponsored project, it will probably fall under existing U.S. Supreme Court decisions permitting school authority. (A school group on Facebook created by students would not qualify here.)
  • On-premises activities: If a student targets another student using interactive technologies or the Internet, there is almost always an in-school activity related to the cyberbullying. Privacy-invading e-mails and harassing messages are often printed out and distributed in school and on school grounds. In addition, cyberbullying typically creates a disruption in school; the victim is afraid, may seek counseling or miss school, their grades may be impacted, and friends may get involved. Any proof of an in-school student impact will help support a finding of school authority. You should note, however, that some courts have not extended the school’s authority to offline and off-premises actions in a cyberbullying case when the cyberbully himself did not bring the printed materials into the school. Others doing it may not be attributable to the cyberbully, without independent action and intent.
  • Cyber staff harassment: If the school can demonstrate that the student’s website or harassment has had a real impact on the staff, the school has a greater likelihood of success in upholding its authority. If the teacher or staff member quits in reaction to the harassment or takes a leave of absence or seeks medical treatment to help deal with the emotional implications of the student’s actions, the courts tend to be more sympathetic and are more likely to give the school the authority to discipline the student. Without this, the courts tend to lean towards leaving the staff member to other legal recourse.

Schools are also attacked (often successfully) when they fail to follow their own procedures. Sometimes pressured by angry staff members, parents, and fear of the problem growing out of control, they fail to adhere to their own written rules. They fail to give the requisite notice, in the requisite manner, and allow the requisite response period to lapse before calling a hearing. They sometimes fail to notify the parents and give the student’s family a chance to respond. This is not a time for shortcuts or acting without careful planning.

Sometime the schools over-reach in their policy, attempting to prohibit speech too broadly. These policies are generally knocked down unless the school can demonstrate a practice that limits an overbroad reach and clarifies what is prohibited and what isn’t for the purposes of the policy and school rules. One school even reserved the right to examine any home computer of their students to determine whether a cybercrime or abuse has taken place using that computer.

The schools have a valid concern and legal obligation to maintain discipline and protect students while in their care. But in this tricky area, especially when damages for infringing on the students’ rights can exceed the annual salary of much-needed teachers and other educational resources, schools cannot afford to guess. Until the law becomes better settled, or unless a local cyberbullying law giving schools extended authority exists in their jurisdiction, the schools need to be careful before acting, seek knowledgeable legal counsel, plan ahead, and get parents involved early.

Public Schools vs. Private or Parochial Schools

Private and parochial schools have more leeway than public schools since they are not deemed “governmental” and not subject to First Amendment restrictions. Note that while some state laws may apply by extending free speech protections to private institutions, this is the exception, not the rule. Even then, schools have always had more legal wiggle room when students’ safety, the educational atmosphere, and well-being are implicated.