Tuesday, March 03, 2009


As I may have mentioned, I’m working on a law review article about cyberbullying with a law student (she’s the expert on education law, about which I know nothing). Like most law review articles, it’s long and complicated so I can’t describe our analysis in detail in a blog post.

I can, though, outline one of the issues we’re dealing with: defining cyberbullying. I haven’t really paid much attention to cyberbullying over the last couple of years, when it began to become a widely reported and talked about phenomenon. My assumption is that it’s more properly dealt with by educational institutions than by the criminal justice system.

(As an example of what, IMHO, is a gross misuse of criminal law, did you see the story about the student who was arrested for disorderly conduct after she refused to quit texting in class? I don’t know why the police had to get involved in that.

Aside from what I see as the unnecessary and unfortunate consequences that would result if the student winds up with a criminal conviction on her record, I’d think that having students arrested in class for conduct other than harming or threatening to harm teachers or students would disrupt the whole environment . . . but, then, what do I know.)

Getting back to my point, one of the things I’ve noted over the last year, roughly, is that cyberbullying became an increasingly elastic concept. It expanded from a term that referred to students using communications technology (email, websites, texting, etc.) to bully each other to a term that also encompassed adult bullying. Last December, for example, Wired had a story about a Chinese man who became the target of a “virtual lynching” by cyber-vigilantes after his wife committed suicide. According to the story, she killed herself because she believed he was having an affair (as he was, it turned out). The headline is “Man Receives Compensation for Cyberbullying,” and the story uses that term to describe what happened to him.

I found that odd because when I think of bullying, I think of schools. I know the term bully is not specifically limited to schools, but I associate it with schools – especially in the online context – because when adults do things to other adults we generally refer to that as a type of crime, e.g., stalking, harassment, defamation, invasion of privacy, etc.

When the law student and I began to develop what we were going to say in our article, I suggested we start by defining cyberbullying more precisely. We did research and talked about it and we came up with a basic premise that would structure how we would define the phenomenon we were going to deal with in the article. The article analyzes the necessity and propriety of using criminal law to address cyberbullying; so for the article to be coherent and useful, we had to define cyberbullying with some precision.

We decided there were two ways to look at it: The first is to regard it as a generic phenomenon; if we take this path, then what happened to the Chinese gentleman and other adults and children can be characterized as cyberbullying. The problem we (mostly me) (had) with that approach is that I don’t see why it makes sense to lump adult and student conduct together in the category of cyberbullying; as I noted above, we use criminal law to address adult-on-adult conduct that involves the victimization of one person by another, at least when that victimization inflicts a harm criminal law takes cognizance of. So I really didn’t see the point of using cyberbullying to refer to what happened to the Chinese man, and other similarly situated adults; seems to me that kind of conduct is best approached as a crime (stalking, harassment, etc.).

The more we looked at it, the more we decided that cyberbullying should be defined as a context-specific phenomenon, with the context being an educational environment. We considered limiting it to the first 12 grades, since that seems to be where most of what is characterized as cyberbullying occurs, but we decided to make it a generic educational context.

The purpose was to at least create the possibility of analyzing cyberbullying at the undergraduate and graduate levels. As a layperson, I tend to assume that bullying, whether cyber or real-world, is more likely to occur in the first 12 grades than at the undergraduate and graduate levels; I base that assumption on the premise that as people mature, they are much less likely to engage in the kind of bullying I assume we all either experienced or observed (or, for some of us, engaged in) when we were in one of the first 12 grades. I’m not saying bullying doesn’t happen at the undergrad or grad levels; I’m just saying it seems to me that it is less likely to be a big problem there (but, again, I could be completely wrong . . . education is not my specialty, either).

So, getting back to our definition. As I said, we decided to define cyberbullying as a context-specific phenomenon . . . as a phenomenon unique to an educational context. We did that because it seems that a significant “harm” inflicted by cyberbullying is its impact on the educational process, especially in the first 12 grades. We also defined it that way because the focus of the paper is on analyzing whether the criminal law needs to create a new crime specifically targeting cyberbullying. If existing criminal law can address the harms inflicted by cyberbullying, the we don’t need a new, cyberbullying crime; to the extent that existing law can’t address the harms inflicted by cyberbulling, then we may need to create a new crime.

Having defined cyberbullying, we created a taxonomy: student-on-student cyberbullying; student-on-teacher cyberbullying; teacher-on-student cyberbullyiing; and teacher-on-teacher cyberbullying. We explained we’re not going to deal with the last two categories because we have an adult perpetrator; our premise is when an adult is the perpetrator of cyberbullying, the use of the criminal law is presumptively more appropriate than when the perpetrator is a student (especially a student in the first 12 grades). A subsidiary premise is that when an adult is the perpetrator, we can probably use existing crimes to prosecute the adult for what he or she did.

We haven’t found any cases that involve teacher-on-student or teacher-on-teacher cyberbullying, but we’re pretty confident they’ll arise. My student is developing hypotheticals to demonstrate how both types of cyberbullying could arise, so we can analyze how criminal law can be used to address both.

I don’t have an example of these types of cyberbullying, but I do have what I find to be a pretty peculiar case that involves an adult engaging in what a news story describes as cyberbullying. Maybe you saw the story, which appeared last month: A North Carolina mother (we’ll call her Mom X) had a daughter (J) who had been part of a circle of girls (teens or preteens, the story say) who were all friends. For some reason, J was kicked out of the group of friends, which aggravated Mom X.

Mom X allegedly used J’s login information to go online and contact the other girls; posing as J, Mom X invited the other girls to join her in a webcam chat. When they did, the story says she yelled at them and insisted they become friends with J again. The story says at least some of the girls who were involved in the webcam chat were very upset about it, to the point that they were crying. Some of the parents called the police who were, when the story appeared, investigating to see if a crime had been committed.

Would this be adult-on-student(s) cyberbullying under our taxonomy? No, it wouldn’t because the adult isn’t affiliated with the school system . . . isn’t a teacher or a principal (or any other adult who’d work for a school, like, say a guidance counselor). Under our definition and our taxonomy, this isn’t cyberbullying; it is, if anything, an adult harassing some children. It really wouldn’t qualify as criminal harassment; as I explained in an earlier post, harassment and stalking both require a course of conduct, i.e., several distinct acts of harassment or stalking. Here, there was only one incident, so I don’t think this woman could (or should) be charged with stalking or harassment.

There are civil causes of action – like the one for intentional infliction of emotional distress – that parents of the girls whom Mom X yelled at could use if they wanted to sue her . . . but I think that would be a very bad idea. It would just drag the girls (J and the one(s) whose parents were suing) into court and aggravate everything; it would also probably really wreck J’s standing with those girls and the others at her school.

As we’re going to point out in the article, not everything needs to be a crime . . . or even a civil suit, for that matter. People in the real-world have, for as long as humans have lived in social groupings, done things to hurt each other’s feelings in varying ways and varying degrees. It isn’t nice, we don’t like it and we want to hit back when it happens. Hitting back physically isn’t a good idea at all; nor, in many instances, is using the law to hit back indirectly.

Freud supposedly said, “sometimes a cigar is just a cigar.” To paraphrase, “sometimes a jerk is just a jerk.”


Creel said...

So is the goal to have schools adopt cyberbullying rules into their codes of conduct so that they do not need to rely on criminal law?

Susan Brenner said...

Yes, that's the idea . . . at least when the cyberbullying doesn't rise to the level of "real" criminal conduct . . . such as threats or stalking or harassment or maybe criminal defamation (in states where it is a crime).