As more and more teens take to the Internet and social media as part of their everyday lives, bullying has gone from hallways and locker-rooms to Facebook and Twitter. But is cyberbullying legally considered a crime? And if so, how do you protect your kids and also protect your kids from being falsely accused of it?

What is Cyberbullying?

Cyberbullying is defined as the use of the Internet and/or mobile technology to harass, intimidate, annoy, or cause harm to another. While bullying is not a new thing, it has become far more prevalent and some might say harsher now that it has moved to social networking sites such as Facebook, Twitter, Instagram as well as text messages and emails. Now bullying can be viewed by peers and acquaintances, causing a much wider spread of embarrassment, shame, and depression. Almost all 50 states have cyberbullying laws in place, or at least electronic harassment provisions.

For example, a person takes an unflattering photo, uploads it, and then people begin commenting on the photo in an unkind way. That one unflattering photo can spread through an entire school in addition to the hurtful comments, thus amplifying the embarrassment or shame.

Family Takes a Stand Against Cyberbullying

A Tennessee family was awarded $150,000 by a federal jury for an online bullying lawsuit they brought when a photo of their son was mocked online.

Adam Holland, who has Down Syndrome had a picture taken of him holding a drawing that read “Go Titans One” during an art class in 2004. Years later, the picture surfaces as a meme with the words altered into both hurtful and offensive phrases.

“It was like being punched in the gut,” said Bernard Holland, Adam’s father. “Adam was very upset and we tried to explain he had done nothing wrong.”

The Hollands decided to take legal action against the people that distributed the photo as a way to stop others from sharing and also doctoring and sharing the photo online without receiving permission.

“To us, this is not a First Amendment right in any way,” said Holland. “We are in favor of the First Amendment. This is just mean. This is just people being mean.”

The Hollands hope to set a precedent for similar cases going forward.

“This has been a long fight for us, and we were glad the jury agreed with us,” said Holland. “The whole reason for doing this is to set some kind of precedent that will set an end to it.”

Next, the Hollands hope to encourage their local Tennessee legislators to strengthen laws in order to prevent people from altering and disseminating a picture of a person without first receiving permission.

“We’re hoping that the legislature will take notice of this happening and laws will be passed not just in Tennessee, but everywhere.”

Cyberbullying Laws Across the Nation

Until recently, no laws existed to specifically address the issue of cyberbullying. But as tragic events continue to happen in rising numbers across the nation, legislators have realized the need for clearly defined laws regarding cyberbullying.

Despite the lack of laws, prosecutors have previously turned to existing laws to prosecute individuals who have cyberbullied others. Oftentimes criminal harassment statutes are used as a basis for bringing charges. More serious criminal charges have also been brought in cases where it has been deemed fit and necessary. Victims have also taken cases to civil court as a way of addressing cyberbullying.

Cyberbullying in California

Cyberbullying is considered a crime in California. Because of that, every school in the state is legally required to institute state policies against student-on-student bullying and cyberbullying.

Under California law, there are two types of online or electronic conduct that are considered crimes.

  • Posting personal information to cause fear
  • Use of electronic device to harass an individual

Posting Person Information to Cause Fear

This means that any person who electronically posts or transmits:

  • personal identifying data of another person, or
  • a harassing message about another person with the intent to cause the other person to reasonably fear for his or her safety or the safety of family members commits a misdemeanor crime in California. (Cal. Pen. Code § 653.2.)

Use of Electronic Device to Harass an Individual (Heading 3)

Any person who uses a telephone or any electronic means of communication to contact another person and:

  • uses obscene language, or
  • Makes a threat to injure the person or property of the other person or a family member with the intent to annoy the other person commits a misdemeanor crime in California. (Cal. Pen. Code § 653m.)

Repercussions for Cyberbullying in California

Both types of the previously discussed forms of cyberbullying are considered misdemeanors in California. A person convicted of a misdemeanor in California faces a sentence of not more than one year in jail, a fine of not more than $1,000, or both. (Cal. Pen. Code § 653.2.)

Schools’ Legal Obligation

Schools are also held responsible for cyberbullying that occurs amongst their students.

Under the California Safe Place to Learn Act (“Act”), all schools in the state must adopt policies and procedures to prevent and address student-on-student harassment, intimidation, or bullying based on “actual or perceived characteristics” of the victim student. (Cal.Edu. Code § 234.)

Schools within the University of California system are also required to establish anti-bullying policies and procedures. (Cal.Edu. Code § 66302.)

California School System Anti-bullying Policies

Per California law, schools are required to develop and post policies that:

  • outline the process for students and others (parents, teachers, etc…) to report bullying
  • outline the process for investigation of these reports
  • require school employees (teachers, administrators, etc.) to intervene and stop incidents of suspected bullying
  • establish a set appeal process for a student seeking to challenge a finding of bullying, and
  • prohibit retaliation against anyone who reports suspected bullying.

(Cal.Edu. Code §§ 234.1, 66302.) Under these policies, harassment, intimidation, and/or bullying are grounds for suspension or expulsion. (Cal.Edu. Code § 48900.)

“Actual or Perceived Characteristics”

As used in the Act, a student’s “actual or perceived characteristic” includes disability, gender, gender identity or expression, nationality, race or ethnicity, religion, sexual orientation, or association with a person or group with one or more of these actual or perceived characteristics.(Cal.Edu. Code § 234.1.)

Defining Bullying

We all have a pretty clear understanding of what “bullying” is, but in the state of California, the Act defines “bullying” as: any “severe or pervasive” physical or verbal conduct thatis directed toward another student and that can “be reasonably predicted” to:

  • cause any reasonable student to be in fear of harm to person or property
  • cause any reasonable student to experience a “substantially detrimental effect” on his or her physical or mental health
  • interfere with any reasonable student’s academic performance, or
  • interfere with any reasonable student’s participation in or benefit from school services, activities, or privileges.

(Cal.Edu. Code § 48900.) The Act expressly prohibits cyberbullying by “electronic acts.”

Under this Act, “electronic acts” is defined as a communication of any kind (including messages, texts, sounds, social network posts, or images) created and/or transmitted by means of an electronic device (including cell phones and computers). (Cal.Edu. Code § 48900.)

Penalties

The penalties for cyberbullying are wide-ranging and dependent on state and applicable laws. Sanctions range from civil penalties to suspension or expulsion from school, to jail time for criminal misdemeanors or even felonies.

Being Accused of Cyberbullying

It can be increasingly difficult to convince courts that your child has been wrongfully accused of cyberbullying, especially when going up against a school system that has laws in place to discipline students for what they say. Because of that, it is important that you have a legal team in place to push back against laws that agree that schools have boundless authority over students and their off-campus personal behavior. Legislation can be unrelenting when it comes to punishing students for cyberbullying, which can be even more damaging to a student that has been wrongfully accused.

Working with an Attorney

The Law Offices of Daniel R. Perlman handles both state and federal computer crimes as well as student offenses, and feels comfortable in developing an effective defense strategy for those who have been accused of cyberbullying. Los Angeles Internet crime attorney Daniel Perlman served as a prosecutor before starting his own defense firm, so he knows firsthand how the prosecution works and the steps to take in building a strong defense strategy.When a college or high school student has been arrested for a serious crime, there’s more at stake than avoiding punishment for the immediate offense. Their whole future is on the line.

To work with a defense lawyer who knows how to attack the evidence supporting a criminal charge while protecting your future opportunities, contact the Law Offices of Daniel R. Perlman in Los Angeles for a free consultation; call 562-287-5333 or contact us online.

Daniel R. Perlman, Esq.
Law Offices of Daniel R. Perlman