Sticks and Stones and Zeros and Ones: Defining Cyberbullying for the Legal Landscape

November 21, 2019 Updated: November 21, 2019

Commentary

An unknown and undefined term just 15 years ago, cyberbullying is now at the forefront of discussion among educators, attorneys, and mental health professionals alike. While each of these fields is affected by this specific form of harassment, its meaning and impact are still being defined. Who are the targets? Who are the perpetrators?

In traditional bullying, the involved parties are easy to pinpoint. In the realm of cyberspace, however, things aren’t so clear-cut. This leaves those wishing to protect victims with a unique challenge on their hands.

To understand exactly how cyberbullying differs from traditional bullying, the term “bullying” must first be defined. In a presentation for the Kentucky Bar Association titled, “Bullyproof: Introduction to Legal Issues Related to Bullying,” attorney Susan Hanley Duncan notes that most experts agree that the act of bullying can be defined as the intent to cause harm, imbalance of power, or repetition.

The CDC publication, “Understanding Bullying Fact Sheet,” further defines the ways these three elements can manifest. Intent to cause harm includes attacks or intimidation with the intention to cause fear or distress.

The “harm” that is inflicted may be physical, psychological, social, verbal, educational, or electronic. The imbalance of power that occurs between the bully and the victim may be real or perceived. Finally, repetition occurs when the attacks or intimidation is repeated between the same individuals over time.

Assessment of intent to harm, imbalance of power, and intentional repetition are challenging in a digital environment specifically. Because cyberbullying is a fairly new occurrence when compared to traditional bullying, what defines it is still being discussed by experts.

While some hold cyberbullying to the same standard as traditional bullying, others say it comes with its own unique set of characteristics that must be taken into consideration. Directors of the Cyberbullying Research Center, Dr. Sameer Hinduja and Dr. Justin W. Patchin, fall into the latter category. They specifically define cyberbullying as “willful and repeated harm through the use of computers, cell phones, or other electronic devices.” Further, they say it differs from traditional bullying in three distinct ways: the impact of digital technology on communication, the widespread use of digital devices, and the unique psychological harm it causes victims.

Impact of Digital Technology on Communication

Cyberbullying can occur anywhere where people view, participate in, or share content electronically. This includes text, apps, email, instant message, social media, online forums, and online gaming. Stopbullying.gov, a federal government website managed by the U.S. Department of Health and Human Services, outlines specific tactics that may be used to inflict harm via a digital channel.

These include: posting comments or rumors about someone online that are mean, hurtful, or embarrassing; threatening to hurt someone or telling them to kill themselves; posting a mean or hurtful picture or video; pretending to be someone else online in order to solicit or post personal or false information about someone else.

It also includes: posting mean or hateful names, comments, or content about any race, religion, ethnicity, or other personal characteristics online; creating a mean or hurtful webpage about someone; or doxxing. Doxing, an abbreviated form of the word documents, is a form of online harassment used to exact revenge and to threaten and destroy the privacy of individuals by making their personal information public, including addresses, Social Security numbers, credit card and phone numbers, links to social media accounts, and other private data.

Patchin and Hinduja note that the impact of this unique electronic setting is profound and may have unintended consequences. “In a digital environment, cruelty can occur with or without the aggressor’s specific intent to make it repetitive or focused upon a less powerful target.” This is an important point to note. Abuse can occur whether it was the aggressor’s intention or not. Even a single comment can have significant impact due to how rapidly it can spread.

Has the definition of cruelty changed since the introduction of digital platforms? Many communication experts believe so. The lack of nuance in online interactions make ascertaining meaning especially challenging to judge. Communicating involves both verbal and nonverbal cues. Nonverbal communication revolves around the facial expressions, gestures we may use, how we employ silence to convey meanings, and our tone of voice, and it is this element that is absent in digital environments.

Research suggests that people perceive digital communication differently than traditional communication. Couple this with a significant imbalance of power, and the infliction of pain or distress becomes a distinct issue.

Cyberbullying and the Widespread Use of Digital Devices

The widespread use of digital devices means that, naturally, there is no escape from the harassment. When a photograph of Canadian teen Rehtaeh Parsons being sexually assaulted at a party was shared digitally among students, she tried unsuccessfully to change schools several times.

The photograph continued to be shared within each new school system and the cyberbullying never stopped. Parsons suffered continuous harassing texts and online comments, and eventually committed suicide as a result. Hers is, tragically, not the only story of its kind.

The American Academy of Pediatrics notes that digital technology can, “alter a user’s perception of the conformity of their attitudes to a majority,” creating waves of abuse that relentlessly crash into the target over and over again.

Abusive power can be drawn from the unique nature of the digital environment. While in most cases this is anonymity, the opposite also holds true. The media specifically has, in many instances, used its influence and reach to engage in cyberbullying and intent to harm.

In her graduate thesis, “Virtual Injustice: Technology, Gendered Violence and the Limits of the Law,” master’s candidate Rachel Brydolf-Horwitz studies the Parsons cyberbullying case in particular. Although not harassed by the media itself, the Parsons case was nonetheless influenced by it. Citing Robert M. Entman’s 1993 article, “Framing: Toward Clarification of a Fractured Paradigm,” Brydolf-Horwitz explores the theory of framing within the media.

“Media and communications studies use a theory called framing to explain how mass media picks up and highlights select elements of a perceived reality and the ways this can ‘promote a particular problem definition, causal interpretation, moral evaluation, and/or treatment recommendation.’” When used to shame or embarrass a target, the action of framing can be especially devastating.

Suddenly the target has lost their own anonymity and can become the subject of further attacks. Members of the public, still safe within the confines of obscurity, feel free—almost obligated—to continue the abuse. Attempts by the victim to disappear and regain their anonymity are impossible.

Brydolf-Horwitz paints a dire yet accurate picture: “Secondary disseminations of content—comments, discussion threads, signatures on petitions, news stories, blog posts, online databases of addresses and phone numbers, digital public records, and countless other types of content about a given person—remain online and searchable in spite of a user’s activity or active status.”

Cyberbullying’s Unique Psychological Harm

The emotional impact of cyberbullying is strong, and independent to that of traditional bullying. Research suggests there is significant variance in psychological harm above and beyond that of traditional bullying. It’s strongly linked to occurrences of substance abuse and depression, sometimes up to six months longer than that of traditional bullying.

Notably, 93 percent of cybervictims reported negative effects, with the majority of victims reporting feelings of sadness, hopelessness, and powerlessness. Targets are left feeling alone, angry, upset, and fearing for their safety. Adolescents and college students are especially at risk, and often choose to internalize their feelings as trust is shattered.

Mental health experts also note that reactions to cyberbullying seem to vary, depending on the device used. For example, being bullied via a computer has a different emotional impact on the victim than being bullied via phone. Pictures and video images are reported as being the most devastating, while texts and calls less so.

Unfortunately, cyberbullying usually involves several digital platforms at once. Victims often conclude suicide is the only true escape from the barrage of torment. Patchin and Hinduja note that targets of digital harassment are almost twice as likely to commit suicide as those who have never experienced it.

Cyberbullying and the Law

What defines cyberbullying is still being shaped as statutory and case law builds. Every state has laws against various forms of harassment that would prohibit cyberbullying. Kentucky, for example, is in the process of criminalizing doxxing. As well, its laws provide civil and criminal remedies for harassment.

New territory in what defines digital harassment, however, is the media’s role in cyberbullying. With their enormous reach, media outlets can abuse the imbalance of power between themselves and the average citizen, framing sexual harassment victims as wanton attention-seekers and high school students as smirking racists. This imbalance of power demands changes to protect private individuals and especially minors.

Similar to the media, social media platforms are the main force of cyberbullying. These platforms should be forced to establish rules that prevent cyberbullying. As currently structured, social media platforms do little to nothing to protect either public or private figures from concerted cyberbullying campaigns. Among the most prominent cyberbullies are celebrities, who gain influencers by attacking others. The problem, though, arises when they attack private individuals and minors.

Do you recall when celebrity and social media influencer Reza Aslan, said of 16-year-old Nicholas Sandmann: “Honest question. Have you ever seen a more punchable face than this kid’s?” Aslan had enormous power to shame and humiliate Sandmann, and he used it to its full advantage knowing what he said would be read and shared across the Twitter platform. In fact, 27,000 people commented on the tweet and nearly 4,000 retweeted it.

Cyberbullying, doxxing, and digital harassment lawsuits are active across the country. In time, they will produce positive change. But until the courts issue an edict, the media, social media, and celebrity influences would be wise to regulate their platforms and conduct to avoid civil and criminal liability.

Todd McMurtry is a nationally recognized attorney whose practice focuses on social media law, cyberbullying, and media/online defamation. You can follow him on Twitter @ToddMcMurtry.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

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