Harassment (bullying) is a major online issue and one which to date governments and the legal system have failed to fully address.

As the law presently stands, there are few readily available legal channels which are targeted at controlling cyber bullying. When looking at how the law regulates cyber bullying, we must take into account varying perspectives on the matter: the responsibility and fiduciary duty of schoolteachers/ caregivers towards the victims; the perpetrator’s rights; and most importantly the current statutory law dealing with the issue.

Teachers’ and schools’ responsibility to ensure the safety of their students is extended only up to the point when the students are in school. Most schools in the UK assume zero tolerance stances towards bullying, however it must be admitted that face-to-face bullying is easier to address. Cyber bullying is not confined to within the school premises, and is commonly undertaken on students’ personal computers and mobile phones- over which teachers have no authority. They are also checked by having to respect the students’ rights to privacy to freedom of expression. This is particularly prevalent in American cases, where teachers are often faced with lawsuits for violating first amendment rights in trying to protect victims of cyber bullying.

Although the perpetrators are also entitled to their rights allowing them freedom of expression, this in not without caveat. Particularly when cyber bullying through the medium of social networks, they (as users of the website) have agreed to the terms and conditions and privacy policy of the website, and must adhere to them. Unfortunately, these regulations appear more stringent then they actually are. It would be impossible in practice for large social networking sites with millions of users to trawl through individual users’ pages hunting for inappropriate content, and although many websites have now made their “Report as Abuse” buttons more visible, there is not much being done in the way of action from the websites themselves.

The relevant UK law provisions in the current statutory framework dealing with cyber bullying are the Protection from Harassment Act 1997; the Malicious Communications Act 1988 and the Communications Act 2003. The offence under the Malicious Communications act has been widened to include cyber bullying, and makes it a crime to send an indecent, offensive or threatening letter, electronic communication or other article to another person. However, the offences under both the Malicious Communications Act and the Communications Act 2003 are summary offences, and can only lead to a maximum of 6 months in prison. An internet ‘troll’ who posted malicious messages on Natasha McBryde’s Facebook memorial page after her suicide was charged under the Malicious Communications Act, but was only sentenced to 9 weeks in prison. This exemplifies the issues with the current law- the younger perpetrators are unaware of the existence of such laws, whilst the older ones are neither afraid nor deterred by the presence of such lenient legislation. The Protection from Harassment Act also falls short, as children and teenagers tend to fall outside the ambit of the Act.

A combination of all the above factors have given rise to a gaping hole in the present law dealing with cyber bullying. However, it is important to question whether the issue can be curtailed simply by reforming the legislation, or whether a more thorough examination and reformation of the policy concerning cyber bullying is best suited to address the issue. In America, for example, for a cyber bullying case to be declared admissible in a court of law, the law dictates an extremely high standard of the level of bullying- even though 47 U.S States have anti-bullying legislation. This implies that several victims’ claims are not seen to be extensive enough to warrant legal action, which is unfair to the victims as they may be suffering the same (if not greater) amount of psychological damage, depending on the situation.

In Australia, 64% of cyber bullies admitted to bullying face-to-face as well, whereas in the UK, 44% of students said that the bullying began offline and was continued online after school hours. Teachers and caregivers- as well as parents- should play greater roles in educating their children about these (very real) concerns which arise when their children start using the internet increasingly frequently. These concerns are not limited to cyber bullying- but also to related crimes such as grooming. The criminal action against cyber bullying has already been shown not to deter adults, but with regards to children issues of capacity and criminal intent arise. Although the age of criminal responsibility in the UK is 10, it seems unreasonable to convict a child who does not understand fully the consequences of their actions, and the psychological harm their spiteful comments have caused. Instead of such a harsh criminal sanction, perhaps it would be more advisable to educate the children from an early age. An added argument in favour of removing the harsh criminal penalties is that in most cases, the victim has already undergone the severe psychological damage that comes with cyber bullying. The primary focus should be on the rehabilitation of the victim through the means of counselling. Interestingly, there is no current action in civil law condemning cyber bullying. It could be proposed that legislators look into implementing civil (tort) law sanctions against cyber bullying as a more effective means of punishing as well as deterring perpetrators. Another innovative way of curbing cyber bullying may be for ISPs to regulate content on their servers- a task which may prove to be less daunting than if a social networking website such as Facebook undertook the same.

The debate on how to address cyber bullying has been ongoing, with strong opinions on both sides. What is undeniable, however, is that there are extremely real ramifications of this virtual bullying, and that action must be taken fast. Changes in the law are required in order for this phenomenon to be effectively addressed and ultimately halted, however history has taught us that legal change does not come about swiftly. As an immediate course of action, cyber bullying must be addressed and curtailed through the public policy measures of education and awareness.

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Bibliography/ Sources

Andrew Murray, Information Technology Law: Law and Society (2010)

Thomas Wheeler, Facebook Fatalities: Students, Social Networking, and the First Amendment, 31 Pace L.Rev. 182 (2011)

Albany Law School Fall Symposium: Cyber bullying from Classroom to Courtroom: Contemporary Approaches to Protecting Children in a Digital Age (2011)

Matthew C. Ruedy, Should Anti- Cyber bulling Laws Be Created?, North Caroline Journal of Law and Technology, Volume 9, Issue 2, Page 232 (July 2008)

Dan Whitworth, ‘Not Enough done to tackle cyber bullying, warns NSPCC’, BBC Newsbeat

LSE News Archives, ‘Engage, don’t restrict, to protect children from online risk finds EU Kids Online’

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