Cyberbullying Laws: An Overview of New York’s
Cyberbullying refers to the harassment and harmful behavior that takes place over the internet or through other forms of digital communication. This includes behavior such as threats, mean texts or posts on social media, or harmful images or videos shared with the intent to hurt, harass, or embarrass the person targeted. The ease with which people can communicate with one another using various forms of technology makes cyberbullying a big issue for many children and teenagers, who often cannot escape it even when they are at home. While in-school anti-bullying programs have been created to deal with more "traditional" bullying situations, cyberbullying is a new and increasingly common occurrence that schools must now deal with as well.
As a result of these risks, cyberbullying is now considered by many schools an issue of student safety that needs to be dealt with, not only to ensure the well-being of the targeted individuals, but also to ensure a safe atmosphere for students in general. Some experts on cyberbullying have noted that the aggressive, persistent and anonymous characteristics of the behavior encourage perpetrators to bully, while decreased support by others (due to the tendency for people to be more supportive in person than online) makes the victim feel isolated . Some individuals even go so far as to classify cyberbullying as a form of sexual harassment.
In order to combat the rise of cyberbullying in the state, New York introduced legislation that allows, among other things, pupils and parents to make complaints about cyberbullying and gives New York Schools the ability to conduct investigations and take disciplinary action with respect to those complaints. The law, known as the Dignity for All Students Act, took effect on July 1, 2012, although many schools were already implementing the required procedures before that date. The law requires school administrators, faculty and other staff to create policies against bullying and harassment, which must include a plan to address incidents of cyberbullying. It further requires each school to designate a chief administrator or principal responsible for administering the program and for coordinating the implementation of the policies and procedures.
At first, the Dignity for All Students Act only applicable to public elementary and high schools, but in September 2014, Governor Andrew Cuomo signed a bill that amended the law to apply to both public and private schools.
Specifics of the NY Cyberbullying Statute
New York’s cyberbullying law rests on a number of key provisions, found across various categories of conduct. The law defines cyberbullying as "harassment or intimidation by electronic means." The elements of the offense are: (1) willful and malicious intent to harass, annoy, intimidate, threaten, or harm another person; (2) any act enumerated in the statute taken through the use of an electronic device or an internet website; and (3) the targeted victim must be a student or employee of the school.
The first element of the offense involves the "willful and malicious intent" to harm another, or to create a material disruption to the school environment. That is, the offender acted with the "purpose to harm or annoy another and the further purpose of harassment, intimidation, or bullying," and where conduct is undertaken "with a conscious disregard for the consequences of such selection," all terms defined under prior case law.
The second element involves a variety of conduct. Under the definition of cyberbullying, prohibited conduct includes "stalking," "misleading," "deceptive," and "intimidating" behavior; "the transmission of a request, message, engraved or printed material, and an electronic communication that either a reasonable person knows or reasonably should know is abusive or offensive or would cause another person to be reasonably placed in fear of personal harm."
The "act enumerated in the statute" includes (i) a written, verbal, physical or electronic act or series of acts against another student or school employee; (ii) a written, verbal, physical or electronic act or series of acts against a person or persons that has or creates a reasonable likelihood of materially and substantially interfering with a safe, disorder free school environment, and that is carried out through the use of technology or electronic devices and is based on an actual or perceived characteristic, such as a person’s race, color, weight, national origin, ethnicity, religion, religious practice, disability, sexual orientation, gender, gender identity or expression, or other distinguishing characteristic; and (iii) a verbal, written, or electronic threat of violence to a person or his or her property, when such person is a student or school employee.
The last element of the offense is the requirement that the conduct be at or near a school, or through the use of a school computer, or through the use of technology to bully a student off school property.
Penalties for New York Cyberbullies
If an alleged bully is found to have violated the laws under New York’s Cyberbullying law, that person could face both civil and criminal penalties. In addition, the alleged bully may also face legal penalties under the statutes that prohibit harassment and intimidation in a public school, such as New York Education Law §11 and §2801.
The consequences imposed on a student who has been accused of, and found guilty of, cyberbullying can vary; however, schools across the state have discretion to suspend or expel students for their behavior. MDRC v. Greene, 76 F.Supp.3d 852, 855 (E.D.N.Y 2015). Additionally, cyberbullies may face criminal charges under New York Penal Law §240.25 (Menacing in the second degree), §150.15 (Unlawful surveillance in the first degree, §120.45 (Stalking in the first degree), or §120.60 (Stalking in the fourth degree), as applicable to the allegations present in any given instance.
The New York legislature views these laws as necessary to reduce and prevent bullying and other delinquent behavior by youths. As stated at the outset, the new laws forbid any form of bullying, including cyberbullying, targeted towards a "protected-class student." A "protected-class student" is an individual who has a physical or mental disability, has a developmental disability, is of the male or female sex, has a contagious or noncontagious disease or infection, has a racial, except for those students who are American Indians, or has a national origin, religion, sexual orientation, or weight." New York Education Law §11(5).
Protecting Victims of Cyberbullying: Resources and Options
Victims of cyberbullying in New York have a variety of resources and support options available to them, both on the legal front and from local advocacy organizations. Resources for victims include, but are not limited to:
- Legal aid legal assistance – Legal aid organizations in New York have resources available for victims of cyberbullying. The New York City LawHelp.org organization has a free bullying legal consultation hotline, providing access to a list of pro bono legal service providers, the availability of referrals and direct mediation, phone advice from an attorney, or advice via email from an attorney. The National Domestic Violence Hotline may also help connect victims of stalking and domestic violence with legal aid resources in their area.
- Victim and Violence services – Victim assistance organizations across New York provide a range of services for victims of crime, including information , advocacy, counseling, and access to complete victim compensation applications. The Office for the Prevention of Domestic Violence provides a list of victim services and resources state-wide.
- Mental Health Association of NYS (MHANYS) – This organization provides resources and assistance for those who have suffered from bullying either as a child or as an adult. It offers access to resources like therapy and support groups.
- Child Help – Although this is a national child advocacy organization, its child abuse hotline and child help directory provides resources for individuals across the state of New York.
- Text and chat lines – Organizations like The Crisis Center offer free, 24/7 support, or textline, for individuals of any age who may be victims of bullying or harassment. The Anti-Bullying Reddit Community (ABRIDGE) also provides chat resources for individuals in the LGBTQ community.
Cyberbullying in Schools: How They’re Responding
Beneath the surface, however, the law places significant obligations on schools. At the most basic level, the law requires each school district to adopt written policies prohibiting cyberbullying and harassment at school as well as off-premises incidents that "create or would foreseeably create a substantial disruption within the school or the orderly operation of the school."
Each district’s policy must include age-appropriate instruction in Internet safety. More specifically, school districts must teach students to: (1) treat others with dignity and respect and (2) refrain from engaging in acts of harassment or bullying, including cyberbullying, while on school property or traveling to or from school.
Effective July 1, 2013, New York school districts also must provide instruction to teachers, administrators, and other school personnel regarding prevention and awareness of cyberbullying. Although many school districts already have implemented similar programs voluntarily, this aspect of the law ensures that Kindergarten through 12th grade teachers are informed of the policy and local laws prohibiting harassment and discrimination. The law encourages districts to work collaboratively with the community to develop programs that educate students about cyberbullying, encourage positive peer leadership in the community and include school social workers and counselors in development and implementation of school policy, training, and prevention and investigative programs.
Finally, the new law prohibits school districts from aiding and abetting cyberbullying. Specifically, the law prohibits "any employee of a private, nonprofit elementary or secondary school from knowingly and recklessly harming, threatening, or harassing a child through electronic means." The law further defines "aiding and abetting" to include participation in, the encouragement of, or the failed attempt to prevent any such act.
Setbacks and Controversies with the Cyberbullying Law
Despite its good intentions, New York’s cyberbullying law has not been without its critics. In fact, critics have raised numerous legal and practical concerns regarding the law and its implementation at public schools across the state. Although the statute attempts to limit its extraterritorial application to bullying that occurs "through the use of any electronic device or the internet, including but not limited to electronic communication that occurs on or with any equipment, software, website, or forum that is owned, leased or contracted for by a school district or any public or private elementary or secondary school," according to one popular perspective, the statute is so broad in its application that it could conceivably apply to all electronic messages that involve two students via any electronic device, even where the bullying does not occur on school grounds or have any connection to school. In addition, critics have raised concerns regarding the vagueness of the term "cyberbullying." Specifically, because the term is not defined in the statute, district officials cannot be certain of the school’s role in addressing cyberbullying complaints and enforcing the new law. This leaves it within the great potential for misinterpretation . For example, many have argued that the lack of clarification leads to the possibility that the law could be construed to criminalize speech simply because of its content. This is especially concerning in the case of anti-gay bullying, because establishing a consensus that anti-gay bullying is impermissible would only serve to amplify what is being perceived as already pervasive discrimination against the LGBTQ community and further marginalize LGBTQ youth in our public schools. The penalties outlined in the statute could also be criticized as being unconstitutionally vague. For example, the law directs public schools not only to punish the offenders, but also to provide counseling or other intervention programs to "address the underlying reasons why the student engaged in the behavior." While such programs may provide some benefit to the children involved, the law does not consider circumstances under which a child may have engaged in bullying behavior. It is therefore possible that the law could be interpreted to impose sanctions upon a child who was bullied. It remains to be seen how courts will respond to these challenges. How these issues are addressed will have a profound impact on the efficacy of the new law at public schools across the state.