A new type of school harassment – cyberbullying – has developed on the base of ordinary school bullying, being rather widespread mostly among adolescents all over the world. This term is referred to as aggressive, intentional act committed by a group or a single person using electronic forms of contact that is repeated many times and extended in time in relation to the victim (Wang, Iannotti, & Nansel, 2009). However, cyberbullying is easier and thus more attractive than ordinary bullying since the virtual environment allows the aggressors to feel less vulnerable and less responsible for their actions. Anonymity is the main factor that distinguishes cyberbullying from bullying. Other differences are manifested in cyberbullying happening outside the school. Thus, it is more secret, has more distinctive and wide audience, and often allows one to see victim’s emotional reactions (Patchin & Hinduja, 2012).
There are many reported cases of fatal damage done by cyberbullying. The issue began to gain attention worldwide in 2002, when the American teenager Ghyslain Raza shot a video in which he portrayed himself as a character of Star Wars, and his classmates, without asking permission, posted it on the Internet. The label “Star Wars Kid” changed the attitude of classmates at school, and the teen’s parents were forced to go to a psychiatrist as well as to file a lawsuit against the parents of classmates who posted this video (Harmon, 2003).
Since then the cases of lawsuits against cyberbullies and news of suicides on the base of Internet humiliations become more and more acute every year. Cyberbullying rates across America have risen from 19 percent to 34 percent in 7 years (Hinduja & Patchin, n.d.). Thus, the growing number of suicides and self-injuries because of cyberbullying indicate the necessity for changing or developing the required legislation, enabling to control the situation.
The Legal Side of Cyberbullying
Cyberbullies usually use various methods to harass the potential victims. This may be the use of personal information, harassment, anonymous threats, flaming, and happy slapping. Often the victims of persecution and harassment are users of social networks, forums and portals who are harassed not by a separate individual, but by a group of people or even a community (Wang, Iannotti, & Nansel, 2009). Bullies can use the methods of joining administrators of social networks for gaining personal information in the virtual space in which they had selected the victim. When it does not work, then they use hacking techniques to obtain the password to access personal data and further use it for brazen blackmail or bullying the victim (Patchin & Hinduja, 2012).
The abovementioned actions are referred to as cybercrime. Like any other crime, it requires effective legislation to prevent and limit the crime spread. Bullying in cyber space is regulated in 49 states (excluding Montana), the first one of which was Georgia, which adopted the required legislation in 1999 (Hinduja & Patchin, n.d.). Every state regulates the bullying problem by its own methods; there is not federal law dealing with bullying, school harassment and no federal regulations enabling the school personnel act adequately in bullying cases (Wang, Iannotti, & Nansel, 2009). Cyberbullying, as a form of bullying, is regulated in a similar way. The state laws controlling cyberbullying are mainly of school authorities concerns. They involve transparency and monitoring adolescent behavior, training and preventive education, i.e. the course on the training of on-line intelligence and general rule of behavior in the telecommunication sphere (Patchin & Hinduja, 2012). In addition, the laws include prohibition of teachers’ on-line harassment by their schoolchildren, specify the prohibited conduct and its specific characteristics, and provide a communication plan for the problem solution (Wang, Iannotti, & Nansel, 2009). Nevertheless, the key point of cybercrime legislation is the policy steps for local educational agencies (LEAs) to be taken to prevent the crime. These strategies mainly include defining, reporting, investigating, responding, sanctioning, referring a victim and writing the details of the misconduct. In addition, LEAs should consult the state policies and measures to control cyberbullying in order to meet the state direction towards the problem solution (Srabstein, Berkman, & Pyntikova, 2008).
The penalty for cyberbullying ranges from state to state. It can be civil one, such as school intervention and counselling, ending with fines and imprisonment for up to 10 years depending on the state. Minimal penalty (the civil one) is applied in case of minor harassment, such as posting a photograph (not of obscene origin) or minor abuse in the Internet chat room or via a mobile phone (Patchin & Hinduja, 2012). The severest punishment is applied under the condition of significant psychological and physical damage resulting from harassment, abuse or threat. For example, suicide, being the extreme case of physical damage, is punished by from 2 to 10 years imprisonment. There is a special punishment for pupils who harass their teachers online. In this case, the bully is forced either to pay the fine of $1000 and/or to spend up to 2 years in jail (Patchin & Hinduja, 2012).
The described penalties are generally adequate for the identified type of crime. The essence of cyberbullying is associated with such rimes as privacy intrusion, incitement to suicide, involuntary manslaughter, information theft, death threat and harassment (Patchin & Hinduja, 2012). The penalties for these crimes are stricter than that for cyberbullying since Internet humiliation excludes personal component of responsibility, i.e. it is sometimes impossible to identify the crime clearly. Therefore, similar but milder penalty is justified here. In addition, cyberbullying is mostly adolescent misconduct. Therefore, taking into account the age of a felon, which is usually bellow 18, rather mild punishment is adequate (Wang, Iannotti, & Nansel, 2009).
Limitations. The main problem for the existing cyberbullying legislation is that the overwhelming majority of people do not consider bullying and cyberbullying as a crime or offensive action. They say this is an essential stage of human development and everyone should pass through it, regardless of the harm and psychological consequences the human being experience after harassment and humiliation (Patchin & Hinduja, 2012). Therefore, the mentioned criminal penalties are the same for common ordinary bullying and cyberbullying since the latter is a part of bullying legislation and is not considered seriously. By 2013, no state in the US has not adopted the criminal status and criminal punishment for cyberbullying, and it is not mentioned in the list of cybercrimes in the U.S. legislation either (Rees, 2006). In addition, there is no federal control over the issue. Cyberbullying is not limited in space and time, but the legislation is. In other words, in case the bully humiliates a person from Montana, he will not get punishment even in case this harassment led to suicide.
Additionally, cyberbullying is said to create controversies and complexities since the existing laws oblige school authorities to create anti-bullying policies, but have no deal with creating a safe school environment, developing tolerance and providing the possibility to investigate a particular case (Srabstein, Berkman, & Pyntikova, 2008). The problem goes even deeper, considering that only 18 states proposed or included the “cyberbullying” term into anti-bullying legislation (Hinduja & Patchin, n.d.). The reason for this lies in the fact that school authorities do not consider cyberbullying as a problem of their concern since it happens mainly at home or outside the school. Therefore, even though they develop anti-bullying policies, cyberbullying remains of parents’ concern (Wang, Iannotti, & Nansel, 2009).
Challenges. Problems with cybercrime legislation are not limited to these contradictions and the absence of federal regulation. As it was mentioned earlier, one of the key characteristics of the Internet environment is anonymity. This means that the responsibility for bringing someone to suicide is difficult to entrust. In addition, proving that a text message on a computer screen or a smartphone have caused such a tragedy, it is quite problematic to find the responsible person. Limitation of on-line communication (as a preventive measure) is simply not possible within the current realities of the online world with the freedom of speech and opinion (Wang, Iannotti, & Nansel, 2009).
Subsequently, the problem with freedom issues and regulation of cyberbullying created other contradictions and challenges to overcome. Many scientists and investigators of the issue of the legal side of Internet harassment claimed that limitation of the Internet use and the content of the messages, posts and podcasts are the violation of the First Amendment – the right to self-expression and to be free from compelled expression. Additionally, it is the violation of the Fourteenth Amendment – “be free from state interference with family relations”, i.e. a child being a cyberbully is the internal family’s issue to be solved (Wang, Iannotti, & Nansel, 2009). In many cases, for example in Miller sexting case, this issue created a precedent for cancelling the charges (Barkacs & Barkacs, 2010).
Nevertheless, the main solution for the cyberbullying problem is imposing limitations on adolescents’ access to the Internet. With the development of technology, the creation of such a limitation tool may seem easy. However, it would be difficult to come up with protection of children by means of only one solution. One requires a set of factors that will ensure the safety of young users such as attention from parents and digital literacy courses, which can significantly improve children' skills of the use of the Internet and different applications or extensions, helping to limit the time a teen spends in the network (Rees, 2006). Law enforcement and state authorities may create special “filters” or “watchers” that control the adolescents’ time on the Internet, and the content they surf through can help to achieve this aim. Apart from the ethical side of the issue, the main problem is that modern possibilities allow an individual to break the majority of limitations online.
Nevertheless, limitations and restrictions are said to be an extremity. One of the most popular technology utilization for the purpose of legal control over cyberbullying is the creation of on-line helping and educational services for both parents and adolescents. Such resources are already created, for example, Cyberbullying Research Center and others. The existing online presences are not created or controlled by state authorities, but by the civil ones. Therefore, the control of on-line activities can be carried out by means of on-line activity, i.e. 24/7 service for helping, monitoring and advising parents and teens on cyberbullying. In addition, the modern technology allows defining the Internet address by name or location. The created service on the State level may give the legal authorities the right to find the bully and send him or her a warning based on 24/7 service reports (Wang, Iannotti, & Nansel, 2009). Knowing that their anonymity can be broken and they can be found and punished, the rates of cybercrimes may drop gradually, especially among adolescents and young adults. In its turn, the creation of governmental educational resources may address the social change by showing that steps are taken towards the problem solution.