a. Introduction
Cyberbullying is the use of the Internet and related technologies to harm others in a deliberate, repeated and hostile manner. Cyberbullying is not a cognizable independent tort in New York, though there are a few statutes focused on efforts to prevent cyberbullying, e.g., statutes requiring schools to educate students on internet safety, etc. Unlike traditional bullies electronic bullies can remain virtually anonymous using temporary email accounts, pseudonyms in chat rooms, instant messaging programs, and other methods to mask their identities. In New York, a WMC experiencing cyberbullying would most likely be
b. Text of Statutes & Regulations
1) NY Educ. Law § 814 – Courses of study in internet safety
(1) Any school district in the state may provide, to pupils in grades kindergarten through twelve, instruction designed to promote the proper and safe use of the internet.
(2) The commissioner shall provide technical assistance to assist in the development of curricula for such courses of study which shall be age appropriate and developed according to the needs and abilities of pupils at successive grade levels in order to provide awareness, skills, information and support to aid in the safe usage of the internet.
(3) The commissioner shall develop age-appropriate resources and technical assistance for schools to provide to students in grades three through twelve and their parents or legal guardians concerning the safe and responsible use of the internet. The resources shall include, but not be limited to, information regarding how child predators may use the internet to lure and exploit children, protecting personal information, internet scams, and cyber-bullying.
2) NY Educ. Law § 2801(2) – Codes of conduct on school property
The board of education or the trustees, as defined in section two of this chapter, of every school district within the state, however created, and every board of cooperative educational services and county vocational extension board, shall adopt and amend, as appropriate, a code of conduct for the maintenance of order on school property, including a school function, which shall govern the conduct of students, teachers and other school personnel as well as visitors and shall provide for the enforcement thereof. Such policy may be adopted by the school board or trustees only after at least one public hearing that provides for the participation of school personnel, parents, students and any other interested parties. . .
c. Cases
1) Finkel v. Dauber, 906 N.Y.S.2d 697, 2010 N.Y. Slip Op. 20292 (N.Y. Sup. Ct. 2010)
Procedural Posture: Plaintiff internet user moved for summary judgment on liability issues and for immediate trial on the issue of damages in defamation suit against teenage officers of an allegedly secret group on Facebook and asserted a claim against their parents for negligent entrustment. Defendants sought sanctions.
Law: Defamation; negligent entrustment
Facts: Plaintiff brought suit based on several malicious statements defendants had posted on a “secret” Facebook group, which she alleged targeted her. The statements asserted (among other things) that she had sexually transmitted diseases, including AIDS, and that she had morphed into the devil.
Outcome: The court held that there was no separate tort of cyberbullying and that plaintiff had failed to make out a defamation claim because the “overall context of the posts” was not defamatory. The court explained that to determine whether a statement was defamatory, it would not “sift[ ] through a communication for the purpose of isolating and identifying assertions of fact,” but rather, it would have to look at the “overall context.”1 The court explained that “[a] reasonable reader, given the overall context of the posts, simply would not believe that the Plaintiff contracted AIDS by having sex with a horse or a baboon or that she contracted AIDS from a male prostitute who also gave her crabs and syphilis, or that having contracted sexually transmitted diseases in such manner, she morphed into the devil. Taken together, the statements can only be read as puerile attempts by adolescents to outdo each other. While the posts display an utter lack of taste and propriety, they do not constitute statements of fact. An ordinary reader would not take them literally. . . The entire context and tone of the posts constitutes evidence of adolescent insecurities and indulgences, and a vulgar attempt at humor. What they do not contain are statements of fact.”2 The court also dismissed the cause of action against defendants’ parents, noting that it would not recognize parental liability for negligent entrustment of a computer in the hands of teenagers: “To declare a computer a dangerous instrument in the hands of teenagers in an age of ubiquitous computer ownership would create an exception that would engulf the rule against parental liability.”3
Special Notes: The court explicitly noted that “the Courts of New York do not recognize cyber or internet bullying as a cognizable tort action. A review of the case law in this jurisdiction has disclosed no case precedent which recognized cyber bullying as a cognizable tort action.4
d. Practice Pointers
As noted above, because New York does not observe a separate tort relating to cyberbullying crimes, a victim of cyberbullying will likely have to try to get relief through a defamation claim or possibly a claim for intentional or negligent infliction of emotional distress.
The New York statutes specifically relating to cyberbullying relate mainly to ways to educate students rather than the law and any corresponding punishments.