E-Mail, Text, Facebook . . . Lawsuit? Legal Minefield of Cyberbullying
Joan M. Gilbride and Brian M. Sher, New York Law Journal, 10-24-2011
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Cyberbullying occurs when one person uses technology at his or her disposal to threaten another person. According to the New York State Department of Criminal Justice Services, it can be defined as "the repeated use of information, technology, including e-mail, instant message, blogs, chat rooms, pagers, cell phones and gaming systems to deliberately harass, threaten or intimidate others."1 Variations of cyberbullying include offensive and sexually charged messages to the recipient, cyberstalking, sharing intimate information about the victim with others, monitoring the victim's online activities, and even infecting the victim's computer with a virus.

Seemingly impersonal and distant cyberbullying and other forms of online harassment can hurt the recipient's feelings, destroy lives (as is evident in the recent case involving a Rutgers University student), and, in some cases, result in expensive lawsuits. Cyberbullying is possible among all groups, from children and young adults in educational institutions to sophisticated professionals at large companies. Although much has been written about cyberbullying, case law involving cyberbullying is new and constantly evolving.

In this article, we will discuss several recent cases on cyberbullying in educational settings and offer our thoughts on this evolving area of law.

Defamation and Distress

We all remember a bully in our schoolyard. Unfortunately, bullying is no longer limited to the kids' lunchrooms and gym locker rooms. Bullying is now online. Just how different is traditional bullying from cyberbullying? Unfortunately, cyberbullying doesn't stop when the school bell rings, and it need not occur on school grounds. With technology and the Internet, it can also be anonymous and hard to trace.

Although cyberbullying is not an independent tort, the victims of cyberbullying may pursue causes of action for intentional infliction of emotional distress, or defamation. Certainly not an easy burden to meet, intentional infliction of emotional distress occurs when the harasser's conduct is so "outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."2 There are additional elements that must be met—the victim must prove intent to cause or knowledge of substantial probability of causing severe emotional distress. Additionally, the victim must be able to establish a connection between the harassing conduct and the injury sustained, and whether that injury is psychological, financial, or even physical. Of course, plaintiff must also be able to prove that he or she suffered from severe emotional distress.

If the victim of online harassment chooses to proceed with a cause of action for defamation, plaintiff is required to show that: (1) defendant made an oral or written false and defamatory statement; (2) regarding the plaintiff; (3) that is published to others by the defendant; and (4) that there is resultant injury or per se harm. It is for the court to decide in the first instance whether the writings and/or statements are susceptible to a particular defamatory meaning which plaintiff ascribes to them.3

In a recent case of Finkel v. Dauber,4 the Supreme Court in Nassau County found that statements posted on a secret Facebook group created by the defendants (five of the plaintiff's fellow school mates) did not amount to defamation. The Facebook group, called "Ninety Cents Short of a Dollar" was a private Facebook group with membership restricted to invitees only.5

Although the plaintiff's name was never mentioned, the plaintiff alleges that the references to the
"11th cent" throughout the group's postings was about plaintiff, because of an edited photograph
on the site of plaintiff, seemingly resembling a "devil," cross-referenced with a post commenting that
the 11th cent turned into a devil.6 The postings by the group's members basically stated, according
to the court, that "the Plaintiff contracted AIDS by having sex with a horse or a baboon or that she contracted AIDS from a male prostitute who also gave her crabs and syphilis, or that having contracted sexually transmitted diseases in such manner she morphed into the devil."7

Finding that "(t)he entire context and tone of the posts constitute evidence of adolescent insecurities and indulgence, and a vulgar attempt at humor," the court dismissed the defamation claim. The court stated that "Determining whether a given statement expresses fact or opinion is a question of law for the court and one which must be answered "on the basis of what the average person hearing or reading the communication would take it to mean." It went on to hold that the online statements directed against plaintiff, "taken together, can only be read as puerile attempts by adolescents to outdo each other" and not as statements of fact.8

Additionally, the plaintiff's second cause of action for negligent supervision against the harasser's parents failed because the parents could not be held liable for "negligent supervision of a child, absent an allegation that the parent entrusted the child with a dangerous instrument which caused harm to a third party."9 The court declined to declare a computer a dangerous instrument, as it "would create an exception that would engulf the rule against parental liability."10 Finally, the court rejected the plaintiff's claim that the posts constitute cyber bullying, and stated that "the Courts of New York do not recognize cyber or internet bullying as a cognizable tort action.11

As this case illustrates, trial courts still view cyberbullying cases with a dose of skepticism, and plaintiffs certainly have a high burden to meet in proving defamation or emotional distress as result of cyberbullying.

Use of Title IX

Title IX of the Education Amendments of 1972, states that "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." The Supreme Court in Davis v. Monroe Cty Bd. Of Educ.12 held that educational institutions may, in certain circumstances, be liable to student victims of harassment and bullying. Title IX is often used by students and their parents who allege that the educational institutions tolerated peer-to-peer or teacher-to-peer sexual harassment and failed to investigate legitimate complaints, thus depriving students of educational opportunities.

In S.S. v. Hastings-on-Hudson Unified School District,13 (in which the authors' firm represented the defendants) plaintiff S.S. was a freshman in the Hastings High School during the 2004-2005 school year. Between March 17 and March 25, 2005, plaintiff received three short e-mails, all of which were sent from another e-mail account by a student named "M.X." The three e-mails were extremely sexually explicit, referred to the victim's various body parts, mocked plaintiff's weight, and were perceived by plaintiff to be physically threatening.

Following an investigation by the district, S.S and her parents sued the district for deprivation of S.S.'s educational opportunities under Title IX. Plaintiffs asserted that due to these three incidents of harassment, the student became afraid for her physical safety, was forced to stop socializing with other teens, stopped getting good grades, and was eventually forced to leave the school.

Since this was a Title IX case, plaintiffs had a burden to establish that (1) the perceived incidents of harassment were severe and pervasive; and (2) that the educational institution, the district, in this case, was deliberately indifferent and did not conduct a sufficient investigation.14

The Second Circuit reiterated the standard that was first set out by the Supreme Court in Davis, supra. The Davis court held that in order to prevail on a claim against an educational institution under Title IX, plaintiffs must show that (1) the school acted with "deliberate indifference" to sexual harassment (2)
and that the harassment was so "severe, pervasive, and objectively offensive that it effectively barred…access to an educational opportunity or benefit."15 The circuit court went on to hold that although each case is to be evaluated on its own facts and there are no clear and established boundaries for what constitutes sufficiently severe and pervasive harassment, the three e-mails received over a single 10-day period with no negative effect on plaintiff's educational life, did not "rise to the level of actionable sexual harassment under federal law."16

In other words, the Second Circuit held that the length, content, and effect of cyberbullying on the victim's life will determine the outcome of the case brought by the victim of school online harassment. Not every e-mail or text, no matter how offensive, can be a basis for federal claims.

In Brodsky v. Trumbull Board of Educ.,17 plaintiffs Maria Brodsky and her minor child, S.B. brought
suit against defendants for depriving plaintiff of educational opportunities under Title IX, claiming that
the defendants "tolerated and encouraged a pattern of sexual misconduct and gender discrimination" against S.B. S.B. was an eighth grade student at Madison Middle School over the course of the 2005-2006 school year. She was the victim of harassment and bullying by her peers in and outside of school.

A few incidents occurred through online instant messaging between S.B. and other students. Plaintiff was called names, and comments were made with respect to her sexual orientation. The case involved numerous instances of online and offline name calling and harassment. The issue on summary
judgment was whether plaintiffs presented sufficient evidence of each element of a Title IX claim to survive summary judgment.18

The court found that "the evidence shows that while S.B suffered numerous instances of rude and unkind treatment by various peers, the alleged behavior was not sufficiently pervasive or severe from an objective standpoint so as to give rise to a claim under Title IX."19 It appears that the court based its decision on the fact that the victim and the harasser knew each other and had a "history" of insulting each other. The court noted that federal law is not "intended and does not function to protect students from bullying generally….or to provide them recourse for mistreatment not based on sex."20 Additionally, the court found no evidence that plaintiff was deprived of any educational opportunities.

What do these cases teach us? Educational institutions should be mindful of two elements of online harassment and should react with due speed to all legitimate complaints. Of course, there is a difference between a stray e-mail and string of offensive e-mails intent on personally attacking the recipient. All incidents, however, must be thoroughly investigated. Title IX liability for an educational institution arises only if, in addition to severity and pervasiveness of online harassment, the institution failed to take reasonable steps to investigate harassment. Of course, reasonableness is a very subjective standard and, certainly, some alleged victims would be dissatisfied with the investigation no matter how thorough or prompt.

Nonetheless, the institution should follow these basic steps in order to assist the victim and protect itself from costly suits: (1) commence an investigation immediately upon receipt of an oral or written complaint; (2) take all threats to the recipient, no matter how implausible, seriously. (3); preserve all evidence; (4) work with Internet technology specialists inside and, if needed, outside of the institution to trace the offensive e-mails or messages to the sender; (5) take appropriate actions against the alleged harasser. The institution must also develop an effective set of written policies dealing with online harassment and enforce its policies fairly and consistently.

Conclusion

With the proliferation of social networks and other online communication programs, we are witnessing an increase in federal and state cases alleging cyberbullying. Although some federal laws already deal with online harassment (such as Title IX in schools), it appears that the two recovery theories most often used by plaintiffs are defamation and intentional infliction of emotional distress.

Joan M. Gilbride is a partner at Kaufman Borgeest & Ryan. Brian M. Sher is an associate with the firm. The firm represented the defendant in 'S.S. v. Hastings-on-Hudson,' which is discussed in this article.

Endnotes

Protecting Children Online
By Pam Greenberg, Vol . 17, No. 22 / April-May 2009
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For children born and raised in a digital world, the Internet, social networking sites, cell phones and text messaging are integral parts of their lives. Many parents, however, are worried that kids will encounter sexually explicit or violent materials or be solicited by sexual predators while exploring the Internet or when visiting social networking sites or chat rooms. The potential dangers facing children on the Internet are more complex than news headlines sometimes indicate, however, leading researchers to recommend a multi-pronged approach to Internet safety for children. This approach involves parental supervision, education in schools, law enforcement involvement, responsible policies and practices by Internet service providers and websites, and use of a combination of protective technologies. State legislatures have used several approaches to address the issue.

State Cyberstalking, Cyberharassment and Cyberbullying Laws

Overview
Last update: January 26, 2011

PLEASE NOTE: The National Conference of State Legislatures (NCSL) serves state legislators and their staff. This site provides comparative information only and should not be construed as legal advice. NCSL cannot provide assistance with individual cases.

Overview

Many states have enacted "cyberstalking" or "cyberharassment" laws or have laws that explicitly include electronic forms of communication within more traditional stalking or harassment laws. In addition, recent concerns about protecting minors from online bullying or harassment have led states to enact "cyberbullying" laws. This chart identifies only state laws that include specific references to electronic communication. However, other state laws may still apply to those who harass, threaten or bully others online, although specific language may make the laws easier to enforce. This chart classifies the various state laws addressing these three different types of online behaviors, as described below.

Cyberstalking. Cyberstalking is the use of the Internet, email or other electronic communications to stalk, and generally refers to a pattern of threatening or malicious behaviors. Cyberstalking may be considered the most dangerous of the three types of Internet harassment, based on a posing credible threat of harm. Sanctions range from misdemeanors to felonies.

Cyberharassment. Cyberharassment differs from cyberstalking in that it is generally defined as not involving a credible threat. Cyberharassment usually pertains to threatening or harassing email messages, instant messages, or to blog entries or websites dedicated solely to tormenting an individual. Some states approach cyberharrassment by including language addressing electronic communications in general harassment statutes, while others have created stand-alone cyberharassment statutes.

Cyberbullying. Cyberbullying and cyberharassment are sometimes used interchangeably, but for the purposes of this chart, cyberbullying is used for electronic harassment or bullying among minors within a school context. Recent cyberbullying legislation reflects a trend of makaing school districts the policy enforcers of such misconduct. As a result, statutes establish the infrastructure for schools to handle this issue by amending existing school anti-bullying policies to include cyberbullying or electronic harassment among school age children. The majority of these state laws establish sanctions for all forms of cyberbullying on school property, school busses and official school functions. However, some have also extended sanctions to include cyberbullying activities that originate off-campus, believing that activities off-campus can have a chilling and disruptive effect on children's learning environment. The sanctions for cyberbullying range from school/parent interventions to misdemeanors and felonies with detention, suspension, and expulsion in between. Some of these laws promote Internet safety education or curricula that covers cyberbullying.

See also: Additional NCSL cyberbullying resources, state laws related to electronic solicitation or luring of children, Internet filtering laws--schools and libraries, and NCSL LegisBrief: Protecting Children Online.

State Statutes