Cyberbullying Litigation: Legal Precedents and Victim’s Options

By Aaron Minc | Cyberbullying

Jul 10
What are the legal precedents for online cyberbullying?

Social media platforms like Facebook, Twitter, Instagram, YouTube and Tumblr are intended to promote creativity and communication, but in recent years they have become venues for kids and teenagers to extend aggressive bullying beyond the confines of the schoolyard. Cyberbullying on the Internet or through text and mobile phone applications opens up a new world of ambiguity that students, teachers, parents, and legal professionals are still struggling to discern.

Cyberbullying reaches far beyond the recent media attention and bold headlines featuring the names of Tyler Clementi, Megan Meier, and Ryan Halligan. In 2011, the non-profit Enough is Enough found that in the last year 43% of teenagers aged 13-17 had been the victim of cyberbullying. The Centers for Disease Control and Prevention more recently found in a comprehensive survey of high school aged teenagers that one in six has been bullied in the last year.

The ramifications of Cyberbullying can be severe when coupled with the fact that the same age group considers suicide at alarming rates. In the case of Tyler Clementi, whose private life was the target of roommate Dharun Ravi, the cyberbullying he experienced preceded his suicide. When the case against Dharun Ravi and Molly Wei came to trial, the basis of the indictment was on charges of invasion of privacy. New Jersey had no specific statute that covered cyberbullying and the prosecution’s use of the phrase, “invasion of privacy” drew fire from a few constitutional scholars who considered the charge a vast overreach. This case displayed the lack of determinant legal precedent when it comes to cyberbullying.

Statutes that Offer Protection Against Cyberbullying

There are three statutes that have been identified by law professors as being as close as one can get to federal protection against cyberbullying: Title IX of the Education Amendments of 1972, Title VI of the Civil Rights Act of 1964, and the Americans with Disabilities Act (ADA). Title IX is primarily used by families whose educational institutions willfully ignored and/or did not properly investigate bullying which resulted in emotional distress that hurt the student’s educational opportunities.

The Americans with Disabilities Act is used as a defense by those students who have a disability, were bullied, and can prove that the harassment was due to an official government or institutional policy. And finally, the Civil Rights Act’s application to cyberbullying cases has been supported in the lower courts when the prosecution is able to prove attacks based on race, religion, or gender coupled with the fact that the school district had knowledge of the harassment and did not take significant steps to combat it.

The most recent case that successfully upheld the Civil Rights Act in the context of cyberbullying was that of Anthony Zeno. Anthony was a high school student at Stissing Mountain High School in Dutchess County. During his full-time at the school, he was harassed, physically assaulted, and met with death threats regularly. The administration responded with delayed half-hearted attempts, according to the courts. Anthony was awarded $1 million as a payout for his harassment.

Aside from federal protection, each state has its own specific anti-bullying legislation. Furthermore, aside from state laws, local school districts tend to write anti-bullying clauses into their rules and codes. A total of 49 states have specific anti-bullying laws, Montana being the only state that lacks this specific legislation. Within those 49 states, 17 have specific provisions for “cyberbullying” and 47 have provisions for “electronic harassment”. Finally, only 11 states have statutes that protect against off-campus behaviors. You can find out more about what protection your state offers at the Cyberbullying Research Center’s real-time updated comprehensive study of state cyberbullying laws.

Within those 49 states, 17 have specific provisions for “cyberbullying” and 47 have provisions for “electronic harassment”. Finally, only 11 states have statutes that protect against off-campus behaviors. You can find out more about what protection your state offers at the Cyberbullying Research Center’s real-time updated comprehensive study of state cyberbullying laws.

Legal Options

If you are a parent or guardian of a child victim of cyberbullying, there are a few options that you ought to exhaust before moving onto the courts. Firstly, set ground rules to take measures to protect against cyberbullying. This includes properly educating your child about responsible social media use, filtering undesirable sites, and monitoring internet activity.

Preventative steps are just as crucial for parents of a bully. Active involvement in setting rules and teaching children that there is no difference between how you treat someone online or offline are critical lessons that all children ought to learn and obey.

Once you are aware that cyberbullying is taking place, it is imperative that your child has the confidence and trust to confide in you and allows you to see the types of attacks against him or her. At this point, collecting a portfolio of screen shots, message logs, downloaded files, etc. is critical to building your case if the bullying goes unpunished and does not subside. You can take this log of information to school administrators and the school board, and finally the courts.

If sufficient action is not taken at the school level, and you have demonstrated proof of that fact, you can take it to court under the federal statutes discussed above. Many students and parents have found that civil lawsuits are less of an uphill battle compared to constitutional cases on cyberbullying that drag on for long periods. Types of civil suits that parents can file are as follows:

1. Invasion of privacy
2. Causation of physical or mental harm
3. Defamation
4. Threats that are unprotected by the First Amendment
5. Intentionally causing emotional distress
6. Spreading libel

When filling any of the lawsuits detailed above, parents can file for a simultaneous injunction or a court order mandating that the bully in question stop harassing the prosecution. In these cases, the parents of the bully can be liable monetarily. In Ohio, for example, parents can be sued for up to $15,000 in certain civil cases.

Pursuing a path involving the courts can be risky, time intensive, and expensive. However, in many cases, the courts have held the parents, students, and/or school district responsible in the case of cyberbullying. Obtaining legal counsel that is familiar with the approach in these cases is highly recommended when venturing into the field of cyberbullying, as the topic remains young, undefined, and inconsistent between courts.

Source list

One in Six Students Bullied
Cyberbullying Statistics
Can Your Parents Sue if You’re Cyberbullied
School Employees Sue Cyberbullying Students

Sara Collins is a writer for NerdWallet, a personal finance site that helps users stay informed about subjects like the cost of long-term care insurance.

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