Beware of the Cyber Bully

To begin our discussion, let’s start with some statistics, and a hypothetical to introduce the issue of cyber bullying. According to i-SAFE foundation, despite the potential damage of cyber bullying, it is alarmingly common among adolescents and teens with over half of adolescents and teens have been bullied–either in the real world or online–at least once and more than 1 in 3 young people have experienced threats online. Cybercrimes, cyber bullying and cyber stalking included, are extremely prevalent and pervasive, yet only 1 in 10 incidents of cyber bullying is reported to a parent or guardian; 1 in 5 is reported to law enforcement. In the United States alone, one of out of every 12 women (that’s about 8.2 million) and one out of every 45 men (2 million) have been stalked at some time in their lives—this includes online cyber stalking. Despite these numbing statistics, the first traditional stalking law was enacted less than a decade ago—in 1990, and law makers have still yet to enact a more focused online stalking—or even more general, an online cyber bullying—statute to protect against these crimes. But, let’s not get ahead of ourselves just yet. Related to our discussion last week in class regarding “griefing” and its effects on users worldwide, this blog will discuss the issues of and potentially damaging effects of cyber bullying and cyber stalking. My readings primarily encompassed these topics, but as the other members of the class were assigned readings incorporating material from Thursday’s class on griefing. My intention of this blog is not to dive into the topic of griefing, but rather to open that up to the class for discussion after having the opportunity to read how griefing plays a role within the realm of cyber bullying and potentially even cyber stalking.

To put cyber bullying into perspective…

Imagine walking down the hallway of your high school as everyone’s eyes turn and focus on you.  You hear the whispers and feel their eyes burning holes in your back.  You’re not sure why you’ve suddenly gone from Ms. Invisible to Ms. Center-of-attention, but while you should be able to enjoy this moment, instead, you feel ostracized and anxious,  like everyone is in on an inside joke that you clearly missed.  You rush into your homeroom class and log onto the computer and then onto your Facebook page.  In the upper right-hand corner, the news feed is fluctuating rapidly and you notice that everyone’s comments are cruel, biting, and focused on one particular comment talking about one person, and one person only. Wondering if this was what you clearly missed checking this morning, you quickly check the update and notice that it is was what you clearly missed checking this morning, you quickly check the update and notice that it the topic everyone is posting about is you.  Your ex-boyfriend posted a blatantly cruel and outrageous lie about you on his wall and now the entire school is worked into a frenzy.  Don’t they know it’s fake? Don’t they know you don’t have that? Don’t they know you didn’t sleep with him? It’s too late.  The words have been written and now the entire school thinks you’re a slut (etc.). Later that afternoon, you notice he posted again and this time he made sure to include a picture of you—naked—for the entire Facebook world, and all your classmates to see.

This is an all-too-common phenomenon among children and teenagers in the educational context. The appealing temptation of anonymity encourages and creates a prime breeding ground for cyber bullying.  While this scenario above is one we commonly associate with cyber bullying, one must also consider the instances where the cyber bully is not known to the victim who feels the repercussions of the bully’s actions.  The perpetrator could be a former friend or lover, a total stranger met in a chat room, or simply a teenager playing a practical joke. In addition, aimed with the knowledge that their identity is unknown, the bully might decide to pursue the victim at home, school, or work, creating email addresses in the victim’s name or gaining access to the victim’s wireless router and thus gaining access to the victim’s computer and all the files connected to this router. See, Adolf Indictment, Criminal No. 10-159.  The cyber bully could essentially be sitting in the office next to you, could cross you on the street, or be a classmate to whom you’ve never said a word.  This anonymity creates not only a veil of secret, exploitative opportunity, but also a situation in which law enforcement and the government fall short in protection due to a lack of resources, the ability to locate the bully (or stalker), and if caught, how to charge the individual as there is currently no specific statute addressing cyber bullying or crimes of this nature online.

Cyber bullying is defined as: the repeated use of computer and other modern communications technology, in an educational context, to engage in non physical abuse of another or others when the actions are constituents of a common educational context. The two requirements of this definition must be present or one cannot be labeled a cyber bully—1) contact must be repeated and 2) conduct must take place within an educational context—any educational institution, regardless of the age of those who attend.  It is worthwhile to note that while the contact must be repeated, it is often required that the contact be either directly aimed at or sent to the victim (ie. a text message or email sent to the victim calling him/her a “slut”) OR be indirectly focused on one person (ie. derogatory Facebook status or chat room response about a particular individual). In addition, more recent case law has focused on the motive and intent behind such postings and messages, and whether or not such intent was harmful and designed to harm the recipient in some manner.

I have to argue that, to me, some of the specific requirements don’t make much sense and I feel that we’re drawing too fine a line making the definition of cyber bullying too underinclusive. How can it be that the only way for someone to partake in bullying online—appropriately labeled “cyber bullying”—is if they engage in these hurtful activities within the educational context.  Yes, we often see that young people (and thus students) are main players in this game of cyber bullying, but does that mean we automatically rule out adults disconnected to the educational context, but equally as culpable of such vicious behavior?  Where does that leave Lori Drew, the woman who harassed her daughter’s friend via a fake Myspace page to the extent that this young girl ultimately committed suicide? (Lori Drew was acquitted of charges.)  I feel that many people are too quick to assume a “bully” is a child or teenager capable of inflicting hurtful comments or actions upon another. Even with a higher level of reasoning and greater frontal lobe development, adults outside of the educational world (ie. not teachers or principals) can be bullies too. I think that as we progress futher into the 21^st Century and adults begin to use online resources like Myspace and Facebook more frequently to communicate with students and other young people (either as themselves or by using a pseudo identity), we will see an increase in the classification of adults as “cyber bullies” and an expansion beyond the constraints of the “educational context”.

For your reference:

Direct vs. indirect cyber bullying (not rising to level of credible threat)

Cyber bullying can be defined as communications that cause the victim to suffer substantial emotional distress (comparable to the criminal crime of “stalking”) or “harass or annoy” him/her (comparable to “harassment”).

	Public	Private
Direct  Electronic communications aimed at or directly sent to victim   Direct, immediate effect on victim	Instant messagesEmail	Text/MMS messaging
Indirect  Electronic communications not directed at the victim. Instead, the bully posts them online   Gives rise to 2 issues: 1) To what extent did the cyberbully intentionally direct the online communication(s) at the victim? 2) And to what extent did he/she intend that the communication(s) would be seen by others whose reactions were likely to have a negative impact on the victim?	MySpaceFacebook a specially created website or blog some other reasonably public area of cyberspace.

The next question to arise is how to prosecute the individuals who conduct such cyber bullying and cyberstalking and the extent to which existing criminal offenses apply to cyber bullying.  Since most states do not have criminal cyber bullying laws, prosecutors who want to impose criminal liability on cyber bullies often rely on harassment statutes. In addition, it’s been argued that finding someone guilty of criminal defamation (slander and libel) also may work as a substitute to a law or statute criminalizing “cyber bullying”.

Harassment can be defined as “conduct directed toward a victim that includes, but is not limited to, repeated or continuing unconsented contact that would cause a reasonable individual to suffer emotional distress and that actually causes the victim to suffer emotional distress.” Mich. Comp. Laws Ann. § 750.411h(1)(c). To expand, harass means to “engage() in a “course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person” and “serves no legitimate purpose.” Review the chart above and focus on the “direct” cyber bullying row. Direct cyber bullying satisfies the essential, yet implicit, requirement of harassment—the actions or words must be directed at a specific victim.  Like other crimes against persons, harassment encompasses conduct targeting a particular individual and criminalizes emotional assault. Because of this, it’s “conceptually possible that harassment statutes could be used to prosecute those who engage in direct cyber bullying.” To determine whether one can be held legally accountable for their technological and virtual bullying of another, the “critical question is whether the conduct involved in direct cyber bullying can establish the mens rea, actus reus, and harm requirements of harassment.”  As an inchoate crime, harassment statutes require the highest level of mens rea (ie. acting intentionally, purposefully, and/or willfully). Because of this, to prove that someone engaged in cyber bullying, the prosecution must show that the perpetrator’s conduct “was directed at the victim and was intended to cause the proscribed harm” (likely to be “substantial emotional distress”) and that “the conduct the bully used was capable of, and did in fact inflict, the proscribed level of harm.” The problem lies in how the prosecution is to show and prove beyond a reasonable doubt “that the cyber bully acted with the purpose of causing his/her victim some level of emotional distress.” The prosecution also runs into the problem of imposing criminal liability on someone simply because they inflicted emotional distress on another person. “We all inflict emotional distress on others from time to time, sometimes inadvertently, sometimes intentionally,” but we are not being held criminally liable for these actions.

One way for intent to be proven is by way of the implied (or sometimes stated) element in many harassment statutes that is designed a basis for inference of intent.  These statutes “require that a perpetrator have purposefully engaged in a ‘course of conduct’ directed at a victim.”  This requirement incorporates objectivity into the mens rea analysis; “a jury can infer the requisite mens rea (purpose or intent) from the nature of the victim’s conduct (ie. the nature of the communications used to target the victim) and from its persistence.” Thus, a prosecutor could use a bully’s course of conduct (whatever it may have been) to “support the inference that the cyber bully not only knew the effect (their actions) would have on the victim, but wanted to cause this effect.”

But what about indirect cyber bullying—how do we refute an argument that a lack of direct communication targeting the victim negates the inference that the perpetrator has the specific intent to harass? This is where we’ve run into trouble and the law is not clear about the nexus between the perpetrator’s actions, the victim, and the consequent harm.

Another way that prosecutors are working toward holding cyber bullies criminally liable is through the crime of defamation.  Defamation “does not require that the defamatory material have been communicated directly to the victim” and thus “do not need to incorporate the distinction between direct and indirect cyber bullying.” It is not necessary to inflict harm by directly targeting the victim; criminal defamation is more concerned with “the more or less generalized communication of material that can provoke a breach of the peace and/or expose the person it concerns to public hatred, contempt, or ridicule.” To apply this concept:  a cyber bully logically could be prosecuted for criminal defamation if he/she (1) published information to one of more persons, (2) that was false, and (3) had the capacity to provoke a breach of the peace and/or expose the person it concerned to public hatred, contempt, or ridicule.” The first requirement should be met rather easily since a cyber bully “uses modern communications technology to disseminate information about or to his/her victim.” The second and third requirements should be equally unproblematic. A showing of actual malice might not even be necessary to prove criminal defamation so long as it can be proven that the cyber bully published or spread “any statement or object tending to impeach the honesty, integrity, virtue, or reputation of a private individual.” Mink v. Knox, 566 F. Supp. 2d at 1224 (quoting Colo. Rev. State. S. 18-13-105)

Today, we have made great strides toward address this problem. While there is still no federal act or statute criminalizing cyber bullying or cyber stalking, there has been a push toward passing acts designed to set a federal standard definition for the term cyberbullying, define the actions falling under this behavior, and establish repercussions for such behavior.  The federal Megan Meier Cyberbullying Prevention Act was introduced to Congress on April 2, 2009 following the Lori Drew incident. “If passed, the law would criminalize any online communication done ‘with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person.’ To date, this Act has not been passed, but it shows the progressive nature of our nation in criminalizing cyber bullying and related cyber crimes.

~ by uflashley on October 8, 2011.