Cyberbullying is the electronic cousin of traditional in-person bullying, which seems to be an unfortunate long-standing fact of teenage social life. Cyberbullying has arisen as the growth of the Internet and other forms of technology have become a big part of how teens socialize.
This article discusses New York’s laws concerning cyberbullying by and against teens. These include state criminal statues regarding harassment, stalking, and other related crimes. To learn more about criminal harassment and stalking generally, see Harassment and Cyberbullying as Crimes.
A bully’s behavior may be addressed under school policy, and sometimes even in criminal court. These potential consequences are discussed next.
A bully who repeatedly commits acts that are intended to annoy a victim (and which have no legitimate legal purpose) may face harassment charges. Harassment is broken into several categories depending on the seriousness of the bully’s actions, with increasing penalties for more severe crimes.
For example, if the acts are meant to seriously annoy the victim, but do not place the victim in fear of actual harm, the bully may be charged with harassment in the second degree. (40 N.Y. Con. Laws Ann. § 240.26.) However, if the acts are meant to put the victim in reasonable fear of physical injury, the crime may fall into the more serious category of harassment in the first degree. (40 N.Y. Con. Laws Ann. § 240.25.) And both of these crimes may be bumped up to aggravated harassment (in the first or second degree) when certain specified factors—such as prior convictions—exist at the time of the crime. (40 N.Y. Con. Laws Ann. § 240.30 & 240.31.)
One important example of an aggravating factor (which puts the crime into the category of aggravated harassment in the first degree) is when the offense was a so-called “hate crime.” A hate crime occurs when the defendant (the bully) was motivated to commit abusive acts because of a belief or perception about the victim’s race, gender, religion, age, sexual orientation, or other similar categories. (40 N.Y. Con. Laws Ann. § 240.31.)
Bullying can also be charged under one of several categories of stalking when the offense included repeated acts meant to put the victim in fear of mental or physical harm (to the victim or someone the victim knows). The least serious stalking violation is charged as fourth degree stalking, and moves up in seriousness through third, second, and first degree stalking when certain factors existed as part of the offense. (40 N.Y. Con. Laws Ann. § 120.45.)
Examples of factors that would place a stalking offense into a more serious category include a situation where a defendant who is 21 or older bullied victim younger than 14, offenses that occurred when the bully had prior stalking convictions, bullying that included threats to commit certain sex crimes, or when a bully threatened to use a weapon against the victim. (40 N.Y. Con. Laws Ann. § 120.50, 120.55, & 120.60.)
The punishments for each degree of these crimes are discussed below in the section entitled “How is Cyberbullying Punished?”
New York requires all public and charter schools to operate under an anti-bullying policy, which must include a prohibition on bullying and harassment (including hate crimes) on school property and at school functions.
Each school district is required to develop its own policy, and must at least include provisions for identifying, reporting, investigating, and responding to alleged instances of bullying (including a statement of which school employees are responsible for handling each of these procedures). (16 N.Y. Con. Laws Ann. § 12.)
Cyberbullying can be more disruptive than face-to-face threats and harassment because abuse that occurs electronically has certain unique characteristics.
The Internet provides a wider audience for abusive or humiliating posts, especially on social media websites, where often anyone with Internet access can see messages and other information.
Similarly, data posted online never really goes away (even if it is “deleted”), an attribute of electronic media that can come back to haunt victims and bullies for years to come. It may even affect potential future employment opportunities, as more employers are now using Internet searches to screen job applicants.
And the schoolyard bully is usually relatively easy to identify, which differs from cyber bullies who may hide behind anonymous or fake user accounts and profiles. Indeed, behind a shield of anonymity, a bully might be bolder—and crueler—than he or she would dare be if faced with the victim in person.
Several defenses may apply to charges of harassment or stalking that end up in criminal court. If you have been charged with these or similar crimes, your lawyer may recommend several defenses, such as the following.
You may be aware that your right to free speech is protected under the First Amendment to the United States Constitution. However, this right is not absolute; the state may limit free speech when it is considered a serious and imminent threat.
A classic example involves yelling “Fire!” in a crowded theatre. This kind of speech may be limited because it is likely to cause immediate and serious havoc as people scramble to leave the theatre.
In the context of harassment and stalking, behavior or words that threaten the victim in a severe and imminent way may also be legally limited. For example, the right to utter a threat about using a weapon is limited (that is, not protected speech) when the victim knows the bully actually has such a weapon and, for example, is nearby enough to make good on the threat. But it is not always clear how serious or immediate the threat was, so it is often worth exploring this defense (especially if your words or actions were ambiguous enough not to put a reasonable person in fear of harm, as discussed next).
Stalking and some degrees of harassment require that the victim was not only put in fear of some harm, but that this fear was “reasonable.” This means that a typical reasonable person in the victim’s position would have found the bully’s behavior threatening. So if the victim was hyper-sensitive to actions that would not alarm an average reasonable person, the defendant may be acquitted of stalking or harassment charges.
As mentioned above, harassment occurs when the defendant engaged in behavior that both annoyed the victim and served no legitimate purpose. Some activities, such as legal protests or labor strikes, are therefore protected (so long as the participants do not break any laws during the activity), because while they may annoy the targeted audience, they serve a legally protected purpose.
A bully convicted of a criminal offense may face fines, imprisonment, or both; penalties vary according to the severity of the crime.
The least serious form of this crime is second degree harassment, which is a violation. Like a parking or traffic ticket, violations may incur fines, but not jail time. First degree harassment is more serious, and is a class B misdemeanor, which incurs a fine of up to $500, up to three months in jail, or both.
When aggravated circumstances existed at the time of the offense, the crime may be charged as aggravated harassment in the second degree (a class A misdemeanor, which incurs up to $1,000 in fines, up to one year in jail, or both); or aggravated harassment in the first degree, which is a class E felony (penalties may include a fine of up to $5,000, up to four years in prison or both).
Fourth degree stalking is a class B misdemeanor. This increases to a class A misdemeanor for third degree stalking, and a class E felony when the offense is convicted as second degree stalking. For the most serious stalking offenses, the crime is first degree stalking, which is a class D felony. Penalties may include a fine of up to $5,000, up to seven years in prison, or both.
As you can see, the consequences of cyberbullying depend heavily on the circumstances of the offense. Sometimes a disruptive cyberbullying incident may be settled under school policy, but more serious cases often land in criminal court. Similarly, a victim may sometimes bring a civil action against a bully for the emotional, social, or financial harm caused by cyberbullying. In civil court, a judge or jury may award money damages to be paid to the victim, for example to offset the cost of therapy for the emotional trauma that the bully caused the victim, or to pay for property damage caused by the crime.
If you have been a victim of cyberbullying, your attorney will discuss specific causes of action that may apply to your case.
Talk to a qualified criminal (or civil) defense lawyer if you have been charged with a bullying-related crime. Only a lawyer can give you legal advice including which laws apply to your case (and how they apply).