Stopping Your Cyberbully [Podcast]

Matt:  Welcome to Radio. I’m Matt Plessner, and we’re going to be covering cyberbullying. We’ll talk about what it means, and what it covers. We’re speaking with Traverse Internet Law attorney, Enrico Schaefer.


Cyberbullying Defined

Enrico:  Cyberbullying is a term that people use when they’re talking about harassment on the Internet using email, chat, social media, blogs or bulletin boards, targeting someone specifically and harassing him or her. It’s not so much a legal term as it is a common term in the vernacular that people use to describe the phenomena of being the target of a person who’s posting information, sending information, or communicating with you online in a way that’s causing you a lot of emotional distress. 


Criminal or Civil Liability?

Matt:  How much damage would one have to inflict for it to become a legal issue?

Enrico:  That’s a big gray area and it depends on the context. Let me give you some examples. If I send a single, somewhat threatening message to someone over Facebook, depending on the content of that message, it may or may not be cyberbullying. However, if I send dozens of messages, and dozens of posts, and target a particular person with the intent — and this is the key — I, as the person who is potentially engaging in cyberbullying, have to have the intent to bully, annoy or cause distress. If I have that, even though I might be saying something a little less dramatic, if I keep doing it over and over and over again, I may cross over into the area of violating a particular state statute, engaging in cyberbullying.   

What you need to understand is there’s the civil side and the criminal side to cyberbullying. On the civil side, you potentially could sue someone for bullying you online, in civil court, and allege, for instance, intentional infliction of emotional distress. The more common legal issue is what happens on the criminal side because every state has a statute which covers at some level, bullying, both offline and online.   

Many states have passed specific statutes to deal with Internet-based bullying or cyberbullying, or using electronic communications in order to bully someone. So there are criminal statutes that may apply, which could result in misdemeanors or even felonies, if you violate that criminal statute. For instance, Michigan has a statute under its penal code that deals with the posting of messages through electronic media, and the penalties, exceptions, definitions, these types of things.


Prosecution of a Criminal Case

Matt: So how can the process elevate to a criminal matter?

Enrico: There is some variation among different localities. But generally you’re going to report a complaint to the police department and the police will assign an officer whose in charge of these types of issues. If the police believe the elements of the crime have been met then the police will refer it to the prosecuting attorney who can decide whether or not the file charges in the case. 

Our role often is that we’ll help put together the materials, evidence and analysis, which can be turned over to the officer in charge of investigating to make his or her job easier. These types of cases take a lot of work. They need to be put together. Sometimes the police officers need to be educated on how these state criminal laws that deal with cyberbullying work and how the evidence fits into the criminal elements. We’ll put the material together and get it to the relevant person, typically the police officer in charge of the investigation, in hope that he or she will provide it to the prosecuting attorney. We’ll then be available to follow up with the prosecuting attorney to help them understand any further information that they need.


Cyberbullying and Defamation

Matt:  It sounds like it needs to be on the side of damaging the reputation or the victim’s way of life in order for it to be criminal.  Just to give you a quick personal example, I have an old friend from high school, whose baby’s father has been posting comments and pictures as well, but criticizes her parenting, and talks about how she’s not a good mother. If this reaches certain people it could be very damaging. Can this be criminal?

Enrico:  Yes, potentially. There’s another aspect of this, defamation. If it’s going to be cyberbullying, in most states, including Michigan and California, the person who’s posting the message has to have the state of mind, the actual intent when they post that message, to cause the victim to feel terrorized, frightened, intimidated, threatened, harassed or molested. So the person who’s posting the message has to have an intent to cause that harm in order to be violating that statute. It’s called the specific intent statute, so some of it can just be harassing. 

There’s another aspect to it, which is called Internet defamation. If I’m bullying someone online, and I’m posting stuff on Facebook about them, I may also cross the line of posting false factual information about them, and also be liable civilly for defamation.   

With your friend’s situation, if the person who’s posting this information on the Internet has the intent to terrorize, frighten or intimidate her, then yes, there’s a potential criminal statute that deals with that. You could go to your local prosecuting attorney. A lot of times, you will hire a lawyer who specializes in this area to help you prepare to visit the prosecuting attorney, so that when you go there you’ve done all of their homework for them, and made it really easy for them to prosecute.   

We all probably realize, there’s a lot more cyberbullying going on out there right now, more than the cases filed. Unfortunately, prosecuting attorneys tend not to get involved in these matters unless they’re really dramatic, or the prosecuting attorney has experience in prosecuting these types of things. So, the victim really wants to make it easy for the prosecuting attorney. You want the prosecuting attorney to file a cyberbullying action against the person. That means making it very simple, getting the documentation together, laying it out, understanding what the specific statute says, showing the prosecuting attorney how it violates the statute, these types of things. That’s where, sometimes, we’ll get hired as attorneys to help the victim prepare to meet with the prosecuting attorney, so that it dramatically increases the likelihood that the prosecuting attorney is going to do something. 


Proving Intent To Harm

Matt:  You’re talking about the intent to damage. This is where it crosses into the legal side. A lot of times, there are people who write or post something, and another person just takes it the wrong way. It can really get out of hand.  How does one prove another person’s intent to harm through cyberposts?

Enrico:  You’re trying to get into someone’s brain. If I’m engaged in a pattern of going after someone on Facebook, I’m using my Facebook wall and I’m using his or her Facebook wall. Eventually, I get blocked from their Facebook wall, but I’m still using mine and I’m targeting an individual. In the criminal cases, and in some of the civil theories of liability, such as intentional infliction of emotional distress, someone is going to have to prove that my intent is to cause emotional distress. My intent is to frighten, intimidate, or harass the person who is the target. 


Now you’ve got free speech and some other issues. Here are the types of things that tend to reflect upon intent. If I have a prior relationship with the person that I am targeting, and it’s clear that I dislike, hate or have a grudge against him, or am trying to make this person do something that she doesn’t want to do, then it’s not much of a stretch for a prosecuting attorney or a jury to conclude, yes, I’m intending to harass that person. I want to frighten that person. It’s this kind of circumstantial evidence that’s going to play into the state of mind intent requirement. 

Matt:  When somebody is in this situation, obviously, their first step is to contact an attorney. Is there any other action one should take?


Steps To Take If You’re Cyberbullied

Enrico:  There are all the practical steps. There next is potential civil liability, filing a lawsuit in court, alleging damages. There is also the criminal side, going to the prosecuting attorney and having the prosecuting attorney follow up on a cyberharassment or cyberbullying type claim.  These are complex issues because one of the things that we see as lawyers who specialize in cyberbullying and defamation issues, is sometimes the person just goes away on his or her own. So, sometimes we suggest don’t poke the monster. If you poke someone, maybe he or she may increase their activities and post a hundred more things. So you have to be very careful about how you handle such an aggressor.

If you think that the person may just go away and that the posts eventually will disappear, sometimes the better move is to ignore the bully. As lawyers, we tend to get involved  after you’ve blocked the person, you’ve used the tools within the technology of Facebook or Twitter, or blogs, to try to limit the visibility of what they’ve done. But if the person keeps at it, at some point you have no choice but to take action.

You want to do the practical things. Get into your Facebook account settings and try to limit the bully’s visibility. You’d certainly want to de-friend him or her. You might want to report the person to Facebook under their harassment/defamation policy and to have this person’s account removed from Facebook. The best advice I always give everyone, which seems like common sense, but sometimes is not done, is you have to do a screen capture. You have to capture what was posted, because he or she can delete it. You’ll have protection if the perpetrator denies the bad conduct ever happened.

So, get the evidence lined up. That will be the foundation of the information that’s going to go to the attorney or the prosecuting attorney, depending on which direction you go. Do the practical things. Try to think logically and try not to simply make rash decisions. These things are very emotional for the victim. You can make some very bad decisions, which could cause the problem to get a lot worse if you are the target of cyberbullying. You should step outside of yourself and ask what is the smart thing to do here?

That’s where getting an attorney involved can also be helpful. The attorney will bring, not only experience and expertise to the issue, but a level of objectivity. Sometimes the victim will cyberbully back, and then just lose all leverage. There are some very practical things, which you need to be aware of.  You have to be smart about how you deal with someone who has made it a mission to cause misery in your life.


Social Media Posts as Evidence

Matt:  One other thing I’d probably want to cover are the posts or messages themselves. Should the victim save the posts or messages that they receive, as evidence?

Enrico:  There’s something to be said for that but it depends. Now, of course, if you don’t delete the posts, are they now showing up on your wall? This makes it potentially much, much worse.  If you have common friends, you might want to delete the posts, but then ask your friend to see what is continuing to be posted and to capture the evidence. These are the exact types of practical issues where you need to be smart and strategic. You have to capture the evidence. Without the screen capture, without the print screen, you’re never going to get a prosecuting attorney to do anything because it’s going to be, “he said she said.” You’ve got to capture the evidence. 

Cyberbullying is only going to get worse in the future, as people gravitate more to the Internet with their grievances. And there’s an emotional component with the immediacy of being able to get at someone using Facebook, Twitter or a blog. 

Matt:  We want to remind you that if you’re a victim of cyberbullying, and any of this applies to you, please contact a local attorney or lawyer because you might have a substantial case.


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