6. Nature of the Abuse
Main Characteristics
• Consists of derogatory
remarks posted through
the internet
• Goal: slander or destroy
the victim’s personal life
Methods
• Uploading false or
humiliating pictures and
videos
• Posting cruel comments on
a blog, website, or webpage
• Bombarding victim with
hateful texts or emails
• Creating a website as a
hate forum
• Combination of these
methods
8. Cyberbullyingvictims arealmost twice as likelyto
have attempted suicide
All adolescents pictured
took their own lives by
hanging, due to cyber
bullying
11. Legal Problems
•National and state
governments only
recognize verbal and
written speech
•It is difficult to categorize
technology’s hybrid form
of speech
•Because this
communication is written,
it is protected under the
First Amendment
12. Overviewof State Law
• Cyberbullying is a state
concern
– Thirty-four states have
worked on provisions
– Prefer to designate control to
the school system
• Cases can be prosecuted
under tort causes of
action
– Invasion of privacy
– Defamation of character
13. Difficultiesfor Prosecuting under Defamation
Definition
The cyberbully
• (1) Published a statement (2) that was
defamatory concerning the victim (3)
while acting with negligence regarding
the truth of the statement (4) the victim
suffered damage as a result.
14. Invasion ofPrivacy by Reasonable Intrusion
Definition
(1) The cyberbully
intentionally intruded
on the victim’s
solitude, seclusion, or
private affairs (2) the
intrusion would be
highly offensive to an
average person (3)
the victim suffered
injury as a result
15. Invasion of Privacy by Public Disclosureof
Private Facts
Definition
(1) The cyberbully publicized matters
concerning the victim’s personal life (2)
the publication would be highly
offensive to a person of ordinary
sensibilities (3) the matter publicized is
not of legitimate public concern
16. Addition to the Texas Penal
Code
•Statute—Section
33.07—attempts to add
more recourse for
prosecuting cyber crimes
•Addresses problems
regarding privacy
concerns
•Makes it a third-degree
felony (Class A
misdemeanor) for
anyone who divulges
another’s personal
information
17. Difficulties with the Code
• Few cases of cyber harassment include
divulging information
• The bully must have also used an
assumed identity when they published
the information
18. Provisionsunderthe Texas
Education Code
•Section 37.001 makes it
mandatory that all
schools have a policy for
cyberbullying prevention
and punishment
•Section 37.217 requires
them to institute a
cyberbullying awareness
program for their
students
19. Difficulties with the Code
• Texas’s School Safety Center and the Attorney
General have not received updated information
that includes Section 37.001 or mention of
cyberbullying
– School Safety Center is suspended from accomplishing any
policy changes
• Research shows that awareness programs
have little effect on the students’ activities
– Adolescents are reluctant to accept school counseling
– Believe schools are not capable of coping with the issue
21. Revisingthe Penal Code
• Section 37.07 stands for
challenges on
unconstitutional vagueness
– Current definitions are too
broad for concrete judgments
• Restriction that the offender
assume a false identity
excludes the majority of
cases
– Most cyberbullies identify
themselves openly
– Code should deal directly with
cyberbullying
22. Identifying Cyber Communication
• The government must
recognize that virtual
communication is an
alternant form of speech
• Virtual communication
shares most characteristics
of verbal harassment
– Classify it as verbal speech
– Remove it from the protection
afforded by the First
Amendment
23. Open an Alternant Action
• Courts should recognize cyberbullying as
an applicable offense under invasion of
privacy by publicly placing the other in a
false light.
• The majority of cases would easily fit the
requirements
– (1) The false light in which the other was placed would
be highly offensive to a reasonable person; and (2) the
actor had knowledge of or acted in a reckless
disregard as to the falsity of the publicized matter and
the false light in which the other would be placed.
Similar to the past Industrial Revolution, we are experiencing a Technological Revolution as more technology is grafted into our culture each year, changing our definitions of work, interaction, and day-to-day living. Unfortunately, the law has not been able to grow with these changes, leaving the world of cyber space far from its grasp.
My name is Victoria Cirrito, and for my honors project for Professor Steele, entitled “Beyond Law’s Grasp” I focused on the vitally important topic of cyberbullying and the legislative problems related to it.
The problem of cyberbullying is foremost on our mind, since 32% of teenagers who use the internet are targeted with threatening messages.
The problem of cyberbullying has grown, mainly for two reasons.
Easy access
As approximated by a study in the UCLA Internet Report, 91% of twelve to fifteen year olds and 99% of sixteen to eighteen year olds regularly use the internet (not mentioning cell phones)
Lack of supervision
Parents and teachers are usually unaware of teens’ internet activities and much of their activities are unsupervised and unmonitored
Though the abuse can take on many forms, the main characteristic is derogatory remarks posted through the internet.
The goal
They can carry this out through many methods…
Cyberbullying is by no means confined between two minors and it often includes far more than verbal abuse.
Most of the time, as cyberbullying mounts, others join in who act as cyberbullies by proxy. [give example]
In some cases the bullying can turn physical and involve bodily injury to the victim or relational (the victim becomes ostracized from his or her social group).
Cyberbullying is not a variant kind of abuse— only an extension of traditional bullying.
Because teens are at a crucial time in their development and highly affected by any kind of ostracizing, cyberbullying has a huge psychological effect.
Studies have revealed that cyberbullying victims were almost twice as likely to have attempted suicide, compared to a youth who had not experience it.
These victims, who took their lives because of cyberbullying, were all under sixteen; but even children far younger can experience this desperation.
At a Harris County School, one boy, at only eight years old, tired of the constant abuse, attempted to commit suicide by jumping from the upper window of his school.
Of course, bullying is not a new concept, but cyberbullying is more detrimental and covert than its face-to-face counterpart.
Often, they use the internet as a refuge to release their pent-up anger or bordom, and teenagers have unrestricted, boundless ability to single out their victims or take revenge on their enemies.
Also, they feel no remorse or responsibility for their words, since they cannot see their victim’s reaction or the hurt they cause them.
Because of this, they tend to be crueler.
Victim cannot escape the abuse in his or her home
The only hope for victims to escape this harassment is through the law
Law has not kept pace with technology, leaving them with ittle recourse and many obstacles
It is hard to categorize virtual communication (texting, posting, emailing, …)
Shares many of the same characteristics of verbal speech but is conveyed in writing.
Because it’s written, federal courts classify them as written
This places huge barriers on punishing cyber abuse
Doctrine of free speech protects most publications
As we’ve discussed, there are not federal laws that prosecute cyberbullying, making it a state concern
Each state can decide different laws that punish it
Though the majority have created (or considered creating) provisions, states prefer to delegate control of the issue to the school system, rather than the courts
In Texas, cases have commonly been prosecuted under tort causes of action (civil wrongs), most commonly invasion of privacy and defamation of character
Unfortunately, both actions contain major hurdle, that are almost impossible for most victims to overcome
Since many forms of virtual harassment intend to harm a person’s reputation, belittling posts and false rumors seem to include all the characteristic of defamation.
However, according to Texas laws the plaintiff must prove that case included four elements
While most of these factors are relatively simple to establish, the major difficulty lies with proving that the messages were truly defamatory, not merely a matter of opinion .
Statements involved in cyberbullying cases, such as “tramp”, “ugly”, or “fat”, though painful for the victim, cannot be defined as true or false because their definitions are subjective.
The court must rule to determine whether they exist as defamatory or opinion, and if they choose to define them as opinion (which is most generally the circumstance) the defendant’s case is dropped.
Invasion of privacy includes two subcategories that defendants of cyberbullying cases usually attest: invasion of privacy by reasonable intrusion and invasion of privacy by public disclosure of private facts
The third point is usually simple to prove
Almost all cases involve a verifiable degree of injury to the victim, due to the psychological nature of the abuse, so victims have no difficulties in proving mental anguish
Other two circumstances usually block the possibility for conviction under this tort.
To have truly interfered with the victim’s personal life, the cyberbully must have physically intruded in some way, such as eavesdropping on private conversations
Few cyberbullying cases involve personal contact
Most of all, invasion of privacy must be deliberate prying, not merely responding to information (such as facebook posts) that are accessible to the general public. Even comments about another’s appearance cannot be classified as such, because a person’s appearance is constantly open to public view.
Of all tort actions, invasion of privacy by public disclosure of private facts is more applicable to cyberbullying cases.
most instances involve the publication of extremely private information to the general public through the internet, fulfilling the first stipulation
The facts disclosed by the cyberbullies are usually embarrassing, petty, and useless, falling under the guidelines of the third stipulation as well.
The difficulty arises in the second element— determining that the comments were morally shocking.
As noted by the Texas Supreme Court, only controversial disclosures about topics such as sexual assault, illegitimate children, physical or mental abuse, psychiatric treatment, or attempted suicide would fall under the category of “highly offensive” to an average adult.
Because most of these publications are cruel, rather than shocking, only the most violently detrimental can fall under the label.
Knowing the obstacles these tort actions present to the cyberbullying victims, Texas’s legislature has attempted to provide remedy through another medium— an addition to the Texas Penal Code—Section 33.07.
Though a step in the right direction, the statute only addresses problems regarding privacy concerns and fails to target the broader issue of cyberbullying
Makes it a third-degree felony (or Class A misdemeanor) for anyone who divulges another’s personal information such as their residence, email address, or telephone number
Very few forms of cyber harassment include divulging information
The aggression lies in the form of insults, threats, or intimidation, making the Penal Code almost completely useless.
Under the statute’s stipulations, the bully must have used an assumed identity when he or she published destructive remarks about their victim, which is not generally the case
Usually, aggressors state their identity openly or use social networking mediums that allow them to publish anonymously, such as Formspring
Legislation being insufficient, Texas, has added more provisions to the Texas Education Code, hoping that adolescents educated about cyberbullying will be less likely to participate in it.
Section 37.001 makes it mandatory that all schools have a policy for cyberbullying prevention and punishment while Section 37.217 requires them to institute a cyberbullying awareness program for their students
The Texas’s School Safety Center and the Texas Attorney General have not received updated information that includes Section 37.001 or any real mention of cyberbullying
Impossible for them to create an effective school plan.
The School Safety Center is suspended from accomplishing any policy changes.
Moreover, current research has shown that awareness programs have little effect on the students’ activities, though it increases their knowledge of the issue
Shown by a 2007 study by the National Crime Prevention Center, “less than forty percent of teens believe that schools should have rules against cyberbullying, or that adults should be taught how to them stop cyberbullying
Believe adults incapable of relating to adolescent social problems, especially those dealing with technology.
Despite the problem’s enormousness, cyberbullying can be minimized through a series of legislative changes
First, the courts must recognize cyber communication as an alternate form of speech and deal with it with the same consideration they give to verbal or written speech
Section 33.07 of the Penal Code must be clearly defined
To open more recourse for victims, the state should extend an additional tort cause of action that is more applicable to their situations
As it stands, Section 37.07 will inevitably be revoked on the basis of unconstitutional vagueness
According to this principle, all laws must be clearly defined
Understandable to the public and free from the possibility of legal misinterpretation
Classifies cyberbullying in vague terms— actions that would “harm, defraud, intimidate, or threaten”
Makes the offense too broad for concrete judgment
Unless the courts can agree on a settled definition for those actions, the entire code will be rejected (the fate of any legislation that contains ambiguities)
Legislators must either delineate specific meanings for the terms or create a more relevant document that can tolerate constitutional challenges
Lawmakers should also lift the restriction that the offender assume an false identity when perpetrating cyber crimes.
Should deal directly with cyberbullying by penalizing anyone who posts personal, false, or defaming information about a minor
Dealing with the broader aspects of the issue, it is important for the government to recognize that virtual communication is an alternant for of speech and revise or create new laws that recognize it as such.
By classifying it as verbal speech, the courts would find it much simpler to try and convict many forms of cyberbullying, which share many characteristics of verbal harassment.
It would remove cyberbullying from the First Amendment’s protection
If the government continues to treat cyber speech as written, there is another possibility open to the Texas courts.
For victims who cannot recover either both defamation of character or common invasion of privacy actions, the majority of cases could recover from a tort action known as invasion of privacy by publicly placing the other in a false light.
To gain relief under this tort, the plaintiff needs only to establish that
The aggressor published objectionable material that would be considered offensive by the general public
If the courts recognized cyberbullying under this tort, most cases would easily fit these requirements
Now, after examining the devastating effects of cyberbullying and legislative difficulties in prosecuting the issue, it is important to recognize the measures that must be taken to minimize this abuse.
Legal work has just commenced; and as cyber crimes increase, it becomes more critical to create strong laws in the virtual world. We must eliminate anarchy in cyberspace and create a safe environment for teenage users.
