Academic journal article Rutgers Computer & Technology Law Journal

From the School Yard to Cyberspace: A Review of Bullying Liability

Academic journal article Rutgers Computer & Technology Law Journal

From the School Yard to Cyberspace: A Review of Bullying Liability

Article excerpt

I. INTRODUCTION II. PUBLIC SCHOOLS AND THE FIRST AMENDMENT       A. The Effects of Bullying Liability with Protected          First Amendment Speech       B. Why School Yard Regulation Helps Prevent the          Effects of Bullying III. THE "CYBER SLAP"       A. The Principles of Vosburg v. Putney       B. Tyler dementi       C. The Need for the "Cyber Slap" IV. THE DEMISE OF BULLYING LIABILITY BASED ON A CLAIM     FOR INTENTIONAL INFLICTION OF EMOTIONAL     DISTRESS (IIED)       A. The History of IIED       B. The Effects of Snyder v. Phelps       C. Why Cyberbullying Fails to Satisfy, Extreme and          Outrageous Conduct       V. Webhost Liability       A. The Growing Need for Imposing a Duty in the          Online World       B. Holding the Webhost Liable VI. PRIVACY LAWS AND THE FUTURE OF BULLYING     LIABILITY VII. CONCLUSION 

I. INTRODUCTION

There has been a lot of change--both good and bad--over the course of scholarship focusing on bullying and cyberbullying. With the growing use of technology, bullies have moved from in-person encounters in the classroom or the schoolyard to chatrooms, walls, pages, and the like in the cyberworld. Despite the increased awareness and media coverage, bullying remains a growing problem in today's society. To that end, there are current voids in the law that need to be revised in order to protect the countless and growing number of victims. Simply put, the law has not gone far enough. (1)

Through my research and involvement with this area of scholarship, there are few things that are clear. The First Amendment protects speech and ideas in the traditional sense but fails to adequately adapt to the changing online landscape. Traditional tort principles of liability have not played out yet to holding a bully liable for his actions, and the notion of holding the webhost liable has not taken hold to the extent that may be necessary. As such, we are left with the dilemma of where the legal landscape needs to proceed. Specifically, some type of duty is needed for bullying liability. But to whom should this duty apply? Accordingly, the purpose of this Article is to synthesize my scholarship to date focusing on the issue of bullying and cyberbullying in the context of primary and secondary education and propose resolutions to the cyberbullying epidemic by reviewing the appropriate instances and individuals to whom a duty should be imposed. (2)

To accomplish this goal, Part II focuses on the extent to which public schools can limit, permit, or censor speech by analyzing the effects of bullying liability in light of the established pillars of First Amendment protections. Part III follows by reviewing and applying the principles of Vosburg v. Putney to the facts of the Tyler Celmenti story and the need for recognition of the "cyber slap." Part IV then details the history of the civil claim for intentional infliction of emotional distress and the Supreme Court's opinion in Snyder v. Phelps. From the historical lens, Part IV concludes by detailing why cyberbullying fails to establish the linchpin elements of a claim for intentional infliction of emotional distress: extreme and outrageous conduct. Part V explores the theory of preventing the effects of cyberbullying by imposing a duty on webhosts to monitor the actions of its users designed to harass, injure, or inflict harm upon the bullied. Part VI then reviews the current role of privacy laws as a potential solution to this issue by incorporating these principles into the prevention of cyberbullying.

II. PUBLIC SCHOOLS AND THE FIRST AMENDMENT

A. THE EFFECTS OF BULLYING LIABILITY WITH PROTECTED FIRST AMENDMENT SPEECH

The threshold issue is not what speech can or should be censored, but whether a school can censor the speech of its students. In addressing this question, it logically follows that if a student has a right to education, (3) then the school has a duty to protect against the interference, or disturbance, with the pursuit of this right. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.