Cyberbullying: Legal Issues

What are the legal concerns related to schools and cyberbullying?

Schools clearly have a duty to ensure that students are using school network or mobile devices in a manner that does not harm other students. The question that would be raised would be whether the school acted in a reasonable and prudent manner in light of the circumstances. It is probable that if such a case came to trial, the factors that would be considered would include the district’s policies, the communications of those policies to students, the manner in which the district allowed use of the district network by students for communication activities, the degree of supervision and monitoring provided by the district, and the procedures established for reporting and addressing cyberbullying concerns.

In addressing complaints of cyberbullying concerns, school administrators should be attentive to free speech standards. Under these standards, school officials may impose educationally based restrictions on student speech and may impose discipline for violation of those restrictions, but they may not engage in viewpoint discrimination. It is also necessary to ensure that appropriate search and seizure procedures are followed.

Search of Internet Records
When can a school monitor and search student Internet use records and files?

The locker search standard should apply to student Internet use. Students have a limited expectation of privacy on the district's Internet system. Routine maintenance and monitoring, technically and by staff, should be expected. An individual search of computer and Internet use records can be conducted if there is reasonable suspicion that the student has violated district policy, including policies against bullying. Schools should determine who has authority to authorize individual search and recordkeeping procedures. Clear notice to students can enhance deterrence.

Free Speech
When can a school legally respond to cyberbullying by disciplining the student?

The First Amendment places restrictions on school officials when responding with formal disciplinary actions in situations involving online speech by students. Case law is limited and provides unclear guidance. The basic legal standard is that school officials can place educationally based restrictions on student speech that appears to be sponsored by the school or that is necessary to maintain an appropriate school climate. This standard probably applies to student speech through the district Internet system or via cell phones used at school. For off-campus online speech, the courts have ruled that there must be a substantial and material threat of disruption on campus. But how this standard might be applied to severe off campus, online speech by one student against another student is unknown.

The best way to handle the concern that the legal standards are unclear is to search diligently for, and document, a school “nexus” to bring case under the educationally based restrictions standard and to document the substantial and material harm that has been caused by the speech. A school “nexus” may be found by demonstrating that harmful material was posted, sent or displayed to other students through district Internet system or on campus. If cyberbullying is closely connected to on-campus bullying, a school official may be able to address the cyberbullying in the context of the whole situation. If school “nexus” cannot be found, it is safest to support target in finding ways to resolve the situation or to contact the parents of the cyberbully to seek informal resolution. The school resource officer may have more flexibility and influence in seeking an informal resolution. Administrators may not be able to intervene with respect to the cyberbullying materials per se, but may be able to become involved in the overall situation. Even if it is not possible for a school administrator to respond directly to a case of off-campus cyberbullying by imposing discipline, there are many other ways an administrator may be able to provide support and assistance to the victim. Given the psychological harm suffered by victims of bullying, and the impact on the victim’s well-being, as well as possible impact on the school, response is certainly justified.

Liability
When must a school respond to cyberbullying?

District liability concerns are raised when cyberbullying is occurring through district Internet system or via cell phone on campus. The parents of a target may file a claim based on negligence or a civil rights violation, if the target is a member of a protected class under state or federal law. Schools have a duty to exercise reasonable precautions against student cyberbullying through the district Internet system and via cell phones on campus. Although there is no case law in this area, reasonable precautions should include:

• Policy provisions that prohibit the use of the district Internet system and cell phones on campus to bully or harass other students.
• Education to students and staff about these policies.
• Effective supervision and monitoring, which should likely include intelligent technical monitoring of Internet use.
• A vehicle for students to report cyberbullying confidentially or anonymously.
• An established procedure to respond to such reports.

Civil Litigation
When should parents consider civil litigation against the bully and parents of the bully?

Some cyberbullying activities meet the standards for what is called an intentional “tort” (wrongdoing). In many jurisdictions, there are parental liability laws that allow someone who is intentionally injured by a minor to hold the parents of that minor financially responsible. While a school would have no standing to sue a cyberbully under these standards, school administrators may be able to use their understanding of these legal standards to either provide assistance to the victim or to strongly encourage a cyberbully to promptly remove material and/or cease his or her cyberbullying actions.

The following are the commonly accepted legal elements for intentional torts committed in the U.S.

• Parents can also be found negligent in failing to provide reasonable supervision of their child. Depending on the facts, the following legal actions might be possible:
• Defamation - Someone publishes a false statement about a person that damages his or her reputation.
• Invasion of privacy/public disclosure of a private fact - Someone publicly discloses a private fact about a person under conditions that would be highly offensive to a reasonable person.
• Intentional infliction of emotional distress - Someone’s intentional actions are outrageous and intolerable and have caused extreme distress.

An attorney can send a letter to the bully’s parents and seek informal resolution or file a lawsuit. Parents may also file an action through small claims court, although this may require some sophistication.

Criminal Law
When should a school contact, or assist a parent in contacting, law enforcement officials?

Extremely harmful online speech can violate criminal laws. The following kinds of speech can lead to arrest and prosecution:

• Making threats of violence to people or their property.
• Engaging in coercion (trying to force someone to do something he or she doesn’t want to do).
• Making obscene or harassing telephone calls (this text messaging).
• Harassment or stalking. Hate or bias crimes.
• Creating or sending sexually explicit images of teens (this is child pornography).
• Sexual exploitation
• Taking a photo of someone in place where privacy is expected (like a locker room)

References

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Los Angeles: Author. Available at http://www.ccp.ucla.edu

Williard, N. (2004). Educator’s guide to cyberbullying: Addressing the harm caused by online Social cruelty. [Electronic version]. Center for Safe and Responsible Internet Use.
Retrieved from http://.www.cyberbully.org

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Ybarra, M. L., & Mitchell, K. J. (2004). Online aggressors/targets, aggressors, and targets: a comparison of associated youth characteristics. Journal of Child Psychology and Psychiatry, 45, 1308-1316.

Internet References:

www.wiredsafety.org

www.cyberbullying.ca

www.bullyingonline.org

www.netbullies.com/pages/1/index.htm

www.mindoh.com/Cyberbullying.aspx

www.bewebaware.ca

www.cyberbullying.org

www.internetsuperheroes.org/cyberbullying/index.html