Regardless of your age, profession, or role in society, you have likely directly or indirectly encountered a bully or, more recently, a cyberbully. Hopefully, you did the right thing; you intervened, reported the conduct, sought assistance, or took other appropriate actions to address the bullying behavior. There are a myriad of important moral and ethical reasons to proactively address and prevent bullying, but the potential legal liability associated with bullying or failing to address bullying may be equally motivating.
As people nationwide have turned to the courts for redress in bullying incidents, we have seen a variety of lawsuits and legal proceedings associated with cyberbullying, such as:
• Civil causes of action for alleged torts like defamation, intentional infliction of emotional distress, negligence, premises liability, vicarious liability, and damages;
• Civil causes of action for alleged free speech, equal protection, and privacy violations;
• Student and employee discipline for harassment and violations of institutional policies and codes of conduct—Effective July 1, 2012, California elementary and secondary schools will also be able to suspend and expel students for cyberbullying that satisfies certain legal requirements under California Education Code section 48900(r); and
• Criminal charges and prosecution for hate crimes, impersonation, harassment, cyberbullying, and violations under the Computer Fraud and Abuse Act (CFAA).
While the foregoing list of litigation associated with cyberbullying is not exhaustive and does not address the success of any particular cases or causes of action, those who have engaged in cyberbullying or who have failed to address such conduct should take note that it would be both expensive and time-consuming to defend these lawsuits, even if they were ultimately found to lack merit.
For instance, even in cases in which the courts have refused to uphold criminal punishments under the Computer Fraud and Abuse Act because the statutory language was vague and did not support a conviction based on the violation of an internet website’s terms of service, the defendants were nonetheless charged, tried, and convicted of criminal violations (before the convictions were overturned on appeal). (See e.g., U.S. v. Drew (2009) 259 F.R.D. 449.) In many cases, whether civil or criminal, the litigation may last several years.
While I prefer to believe that people and institutions will take appropriate actions to prevent and address cyberbullying because it is the right thing to do, I realize that some are even more motivated by the threat of liability or litigation. Whether you are a parent, student, educator, administrator, employer, or employee, consider the moral, ethical, and legal consequences associated with cyberbullying and ask yourself whether you prefer to take action or to defend the cyberbully’s actions in court.
Penelope Glover is a Senior Associate with Atkinson, Andelson, Loya, Ruud & Romo’s Education Law Practice Group, which represents school districts, county offices of education, professional education organizations and community colleges throughout California. In addition to training and advising clients on technology and human resources issues, Ms. Glover regularly conducts independent investigations into alleged claims of misconduct by students and staff. Ms Glover also assists schools with the development and implementation of policies and practices which are consistent with current law and changing technologies.