What is Cyberbullying?
Cyberbullying Definition and Scenarios: Common Examples of Cyberbullying
Many individuals have heard the term "cyberbullying," but what exactly does it mean? A cyberbully will use digital devices or online communication to bully a person, which is defined as intentionally harmful behavior using the following forms of communication:
When the bullying is directed towards minors, it is referred to as cyberbullying – i.e., online harassment involving perpetrators who are minors themselves. Younger students will often use cell phones, social media, and texting to perpetuate this form of bullying, making it much easier to harass a victim. Communication and access is continuous in this digital age, allowing assailants to taunt, threaten or embarrass a student while at home, at school, at work, or any place frequented by the individual. The following scenarios are often cited as examples of cyberbullying:
· Harassing text messages or emails
· Impersonating another student online to spread rumors, post embarrassing videos or photos, etc .
· Posting embarrassing, or humiliating photos, videos or messages
· Sexting – i.e., when one minor sends, receives, or forwards sexual explicit photos or videos of another minor, often with malicious intent
· Harassment of minor through online platforms, such as Facebook, Twitter, Instagram, Snapchat, online games, formspring.me, ask.fm, or other digital forum
When someone is bullied face-to-face, the victim can often avoid the individual or speak with a teacher or parent about the issue. On the internet, however, bullies can masquerade behind an anonymous profile, some can use fake or computer-generated profiles, or at minimum some feel buffered from the emotional impact of their actions. As a result, victims of cyberbullying may suffer mental health issues, such as depression, anxiety, low-self esteem, self-harm, suicide, etc.
Detectives can often find out the identity of an anonymous cyberbully with warrants for the user information of the owner of the device or of the website.
Cyberbullying Laws in California
California has taken a leading role in addressing the issue of cyber harassment through various statutes that target bullying of all forms. First and foremost among these is the California Education Code § 32261, which mandates every school district in the state to implement an anti-bullying policy to prevent and address the increasingly prevalent problem of bullying of all kinds. This legislation leads schools to address and eliminate the types of bullying, including cyber, that may occur among their students.
In addition, in 2013, the California state legislature passed a series of laws that specifically target cyber harassment. The California Education Code § 48900.4 eliminates the element of physical presence in both the definition of bullying and the behavior that constitutes actionable bullying. The bill also eliminates the physical presence requirement for the statute defining when a school may suspend a student for bullying. As a result, a meeting that takes place anywhere, whether on or off campus, where a student of one school harasses a student from that same school or any other school can fall within this amended statute, therefore subjecting such student to possible suspension.
Another set of amended statutes falls under the Education Code § 48900(r) and the Penal Code § 653.2. These expanded provisions allow for district employment discipline against those who commit the behavior described under the expanded definition of bullying. These statutes also allow the school district to monitor any bullying that takes place off-campus when it is done through electronic means, such as texting, emailing, use of social media and more. The students involved in this type of bullying may be subject to expulsion at the discretion of the district. Of note, however, is that for students to be subject to expulsion, the bullying must cause severe and substantial disruption.
Consequences in California for Cyberbullying
California has recognized the importance of addressing cyberbullying and has enacted laws that aim to provide a framework for dealing with this issue. Criminal laws, such as harassment or stalking charges, can apply in cases where the conduct of the cyberbully rises to a level of criminal behavior. This can include using electronic means to engage in repeated unwanted communication, following or stalking an individual, or threatening violence. If convicted under these charges, a cyberbully could face significant fines and jail time, depending on the severity of the crime and the offender’s criminal history.
In addition to criminal sanctions, civil laws can also be used to address cyberbullying. Under California law, cyberbullying can lead to various civil liabilities, such as defamation, invasion of privacy, or infliction of emotional distress. For example, if a student creates a fake social media profile and uses it to spread false and harmful statements about another student, the victim can potentially file a civil lawsuit for defamation against the impersonating student.
Moreover, victims of cyberbullying often seek justice through school policies and disciplinary procedures. California Education Code 48900 gives schools the power to discipline students who engage in cyberbullying that disrupts the school environment or creates a hostile educational setting. This can include suspensions or expulsions for severe cases, as well as other corrective actions designed to educate the student on the harmful effects of their behavior.
The case of Doe v. Taylor Independent School District (2009) provides a significant precedent in this area. The case involved a high school principal who viewed and then seized a student’s cellphone during lunch and discovered sexually explicit images of other students on the phone. The principal then showed the photographs to the student body, and the victim of the photos alleged that she was harassed and bullied as a result.
In Doe v. Taylor, the court held that the school administrator violated the student’s Fourth Amendment right to be free from unreasonable searches and seizures by seizing the phone without a warrant or probable cause. Furthermore, the court ruled that the principal’s actions in showing the photographs to other students constituted a violation of the student’s right to privacy. This case illustrates the legal ramifications for not only the individual who engages in cyberbullying, but also for those in positions of authority who overstep their bounds.
How California Schools Deal with Cyberbullying
Schools in California are required to respond to instances of "cyber bullying." California public schools are required to adopt and implement rules and procedures aimed at the prevention of harassment, intimidation, and bullying. In 2015, it was amended to include "cyber bullying" under the list of prohibited behaviors. (Ed. Code § 48900(r)). "This article highlights specific legal duties that schools have in responding to instances of cyberbullying, as well as the implications of their failure to act." Without a formal "cyberbullying" policy, it is tough to scrutinize how a school might treat a cyberbullying complaint. Does the school treat it like harassment? If yes, then the victim should have access to Title IX policies which could result in the perpetrator being expelled. Does the school treat it as harassment? If yes, then it will likely be addressed by the school’s anti-harassment policies which vary from district to district. It is worth investigating whether a District has adopted an anti-harassment policy for staff and students. If they have, then the policy should be reviewed closely to determine whether the school acted in accordance with those policies. California schools in the K-12 system have the duty to immediately investigate all complaints made in good faith to determine if the complaint is valid or not. (5 C.C.R. § 4960) All complaints are confidential . Harassment policies as provided by California school boards often define harassment as "engaging in verbal, physical, or visual conduct that creates an intimidating, hostile, or offensive educational environment." This is considered harassment because it violates Education Code Section 48900 (1). If you can prove that cyber harassment is occurring, then it may be possible to obtain an anti-harassment order. Usually schools will go through their internal process first. If the internal process does not remedy the situation, then it may be time to aggressively seek other remedies. "When a school ignores complaints, we sometimes turn to law enforcement. Most often the police then turn to the local prosecutor’s office, in the country where the alleged cyberbully resides. But there is another option where a decision is made at the county level whether or not the contempt hearings should proceed." Please continue to follow our blog as we post more about how parents are dealing with these scenarios.
Additionally, whereas the school may address the underlying criminal act of hacking, email spoofing, or stalking in a possible off-campus situation, we intend herein to provide resources to pursue a civil remedy. Further, while under California law K-12 schools and colleges are generally not liable for off-campus actions of their students, if the public school encouraged, promoted, or colluded in the behavior in violation of the Education Code, they could be sued or prosecuted. This article highlights specific legal duties that schools have in responding to instances of bullying.
Victims of Cyberbullying Have Legal Rights and Remedies
For parents, educators, and the victims themselves, the California legislature has attempted to define rights of the victims as well as provide legal remedies. More than a decade ago, prior to the computer becoming commonplace in every school district, California enacted laws to protect students from cyberbullying. In 2008, Education Code Section 48900(r) was added, stating that a student can be suspended or recommended for expulsion if he or she engaged in harassment, threats, or intimidation against school personnel or a pupil under certain circumstances with the threat of creating serious bodily injury. The intent of this particular provision was to protect teachers from cyberbullying as well.
In addition, California Penal Code Section 653 attempts to target the harassing and repeated communications that is generally the basis for cyberbullying. The Penal Code can impose criminal penalties on individuals who harass by telephone, e-mail, or other electronic means. The section creates liability if a person by means of electronic communication causes another person to be reasonably frightened.
Cal. Penal Code Section 653m(a)(b)(c) is one of the few penal sections that define harassment by e-mail, text, and social media. The law defines that a communications is harassing if it is meant to harass, annoy, or offend; is not true and is known to be untrue by the person sending it; or is so extensive as to cause the recipient to be reasonably annoyed or harassed. If a person is convicted under the code, the punishment can include incarceration, fines, or both.
In addition to criminal laws, civil laws also attempt to address cyberbullying that has not reached the level of criminal harassment. A civil lawsuit can be brought by an individual who has been the victim of harassment or harassment by another individual. The most logical choice for bringing the civil claim is under Civil Code Section 1708.7, establishing a pre-existing cause of action for the publication or distribution of an image of another depicting the other person engaging in a sexual act if the image was taken when the person had a reasonable expectation of privacy after the person had consented to the act. Other civil actions for cyberbullying are defamation, false light, and invasion of privacy. The current law extends to supervisors and employees at schools with some restrictions. In the past, these laws were more geared toward high school students and school personnel, but now they have been extended to protect younger victims as well as other individuals.
Resources and Tips to Prevent Cyberbullying
Preventing Cyberbullying: Resources and Tips
Prevention of cyberbullying lies in the hands of the student, and sometimes – to a lesser extent – the parent. While school districts use a large number of resources to help educate students, parents should also take an active role in learning about this new form of harassment and how they can best protect their child.
Technology provides us with an abundance of resources to help prevent cyberbullying. For both parents and students, McAfee provides a great toolbox of resources for stopping cyberbullying before it starts. This resource includes a quiz to help assess your risks, resources to teach kids how to be good digital citizens, and a step-by-step guide of when technology may be appropriate .
When it comes to school districts, the state of California has made it a priority to raise awareness about the many harmful effects of cyberbullying. In the 2015-2016 school year, the California Department of Education hosted in-person and virtual events to help educate other organizations on how to prevent cyberbullying. As recent as this spring, the department, in collaboration with EverFi, announced that they are working together to implement new curriculum called "Digital Compass." The curriculum is given for free to fifth graders in over 10,000 schools across the country.
California has taken large steps in addressing cyberbullying. Prevention is the first step for school districts and parents alike.