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Chapman Review

Volume 19 | Issue 2 Article 1

2016 A Perspective on Denis Binder Chapman University, Fowler School of Law, [email protected]

Follow this and additional works at: http://digitalcommons.chapman.edu/chapman-law-review Part of the Law Commons

Recommended Citation Denis Binder, A Tort Perspective on Cyberbullying, 19 Chap. L. Rev. 359 (2016). Available at: http://digitalcommons.chapman.edu/chapman-law-review/vol19/iss2/1

This Article is brought to you for free and open access by the Fowler School of Law at Chapman University Digital Commons. It has been accepted for inclusion in Chapman Law Review by an authorized editor of Chapman University Digital Commons. For more information, please contact [email protected]. 37838-chp_19-2 Sheet No. 10 Side A 05/09/2016 12:16:02 4/23/16 9:31 AM AM 9:31 4/23/16 t the Internet and t the Internet * 1 Internet, through its various Internet, through its various age both because it is age bullying both because it is 359 Denis Binder , Vidovic v. Mentor City Sch. Dist., 921 F. Supp. 2d 775 (N.D. Ohio 2013) A Tort Perspective on Cyberbullying on Cyberbullying Perspective A Tort Professor of Law, Chapman University Dale E. Fowler School of Law. S.J.D. 1973, e.g. See, The Internet has opened the world to the rapid has opened the world The Internet used to ply the hallways,School bullies schoolyards, and bullies still exist, bu These traditional Attention is focused on teen However, cyberbullying is not limited to students. Adults can * 1 M K L.L.M. 1971, University of ; J.D. 1970, 1967, University of San Francisco. A.B. Do Not Delete Not Delete Do dissemination of knowledge. It has revolution, also, like every to newopened the door and . The law is now newresponding to the phenomenon of cyberbullying. traditional victimsplaygrounds. The of bullying knew who their bullies were. social media have created a wholebullies, who, new class of often anonymously, from use the Internet, to electronically a distance, torment victims their through smart phones, tablets and personal computers, and any other forms of electronic communicationsboards, chat rooms, bulletin on , , post, text, hack, and instant and their own websites. They message. photoshopped to picture a person in a false Photos are light. Their aim is to disparage, humiliate, or torment the victim. Social media empowers, but also destroys. The can be felt 24/7. Occasionally the victim’sgreat distress has been so that the victim has committed . electronic means, is an integral part of the culture and lifestyle of part of the culture electronic means, integral is an younger generation. They are electronically wired. today’s also be perpetrators and victims. very common insecurity issues and because teenagers often have years betweenas they traverse the difficult and childhood adulthood with hormones in. Teenagers are also well kicking known for sarcasm and meanness, both of which are manifested in cyberbullying incidents. The (cyberbullying based on national origin). C Y 37838-chp_19-2 Sheet No. 10 Side A 05/09/2016 12:16:02 A 05/09/2016 10 Side Sheet No. 37838-chp_19-2 37838-chp_19-2 Sheet No. 10 Side B 05/09/2016 12:16:02 M K C Y 5 4/23/16 9:31 AM AM 9:31 4/23/16 She was teased Is Violating an Internet 3 , http://www.meganmeier Lori Drew’s Conviction and , Megan from suffered 2 dly. His final message [Vol. 19:2 [Vol. llying was limited in time OUNDATION is psychological, often with often is psychological, F The two bonded on the The two bonded 4 EIER ysical, often with often ysical, psychological M EGAN , M . 67 (2009). EV Chapman Law Review Law Chapman .U.L.R T S Megan’s Story , 37 W. Id. Id. case, see Kristopher Accardi, For a detailed analysis of the Pokin, Steve Traditional bullying wasbullying Traditional ph The prosecutor for St. Charles County, Missouri,The prosecutor for St. Charles declined to Megan was devastated and committed in her suicide The prototypical case involved thirteen-year-old Megan involved thirteen-year-old case The prototypical Megan created a MySpaceShe shortly connected account. “Josh” was not Josh, though. Indeed, he did not exist. He was negative when “Josh” sent The online relationship turned 2 3 4 5 since the third grade and wasdepression since receiving medication for disorder and bipolar syndrome. attention deficit bedroom the next day on October 16, 2006. This tragedy bedroom 2006. 16, the next day on October reverberated nationally. no crimeprosecute because he could divine under state law. Instead, the United proceeded States Attorney in Los Angeles with a count and several charges foundation.org/megans-story.html [http://perma.cc/F9ML-Q3WK]. 360 Do Not Delete Not Delete Do complications. cyberbullying Today’s complications.physical bu Traditional time occur at any cyberbullying can Today’s and space. a on World through the global basis Wide Web. Meier Missouri, in O’Fallon, an upper-middle-class community thirty-five miles northwestSt. Louis. of with sixteen-year-old Josh Evans. with sixteen-year-old for being fat. Megan Her suicide in the past. had considered friendship with Sarah Drew, friend, had recently ended. a close the creation of Lori Drew, Sarah’s mother, who lived four doors Sarah and an eighteen-year-old away. Lori created Josh with employee, Ashley Grills, to determine if Megan was “trashing” a campaignher daughter. It evolved into to inflict pain on Megan. Lori had posted a photo of a boy, without the boy’s permission, as Josh. this message: “I don’t know if I want to be friends with you any are not a very good friend.” The longer because I heard you exchanges became increasingly unfrien said: “You are a bad person and everybody hates you. Havesaid: “You are a bad person and a shitty rest of your life. The world would be a better place without you.” Internet. Megan was happy. Cyberbullying Service Provider’s Terms of Service an Example of Computer and ?: An Service Provider’s Terms of Service an Example of Computer Fraud and Abuse?: Analytical Look at the Computer Fraud and Abuse Act 37838-chp_19-2 Sheet No. 10 Side B 05/09/2016 12:16:02 B 05/09/2016 10 Side Sheet No. 37838-chp_19-2 37838-chp_19-2 Sheet No. 11 Side A 05/09/2016 12:16:02 ODE C ENAL 4/23/16 9:31 AM AM 9:31 4/23/16 .P AL , C Irrespective of 361 361 10 9 See, e.g. the victim’s sexual identity, at 466–67. ) acquiring information about ) acquiring information Id. 7 ality, race or ethnicity, religion, ality, race or ethnicity, religion, for cyberbullying, causes of action for cyberbullying, causes of action TATUTES S case, holding the federal statute did case, holding the I. govern law enforcement.” A Tort Perspective on Cyberbullying on Perspective A Tort 6 It was vague and failed to provide unconstitutionally 8 at 464. Id. Id. 18 U.S.C. § 1030 (2012). United States v. Drew, 259 F.R.D. 449, 468 (C.D. Cal. 2009). The judge held the One provision, in addition to general anti-bullying statutes, is to the creation The impact Megan of the Meier case and similar cases Potentially liable parties include the bully, parents of the Potentially liable parties include If the cyberbullying is based on The convicted Lori DrewThe jury convicted of three and In essence, she posted on MySpace she posted In essence, violation of MySpace’s in 6 7 8 9 10 M K against Lori Drew for alleged violations of the Computer violations for alleged Drew Lori against Fraud Act. and Abuse prompted states to enact cyberbullying statutes. “minimal guidelines to statute was unconstitutionally vague, had notice deficiencies, and did not provide statute was unconstitutionally vague, had notice deficiencies, and did not provide minimal guidelines to govern law enforcement. of an impersonation website, as was done with “Josh Evans.” bully, school districts, and Internet providers (“ISPs”). service are available under tort law.are available under tort include , They intentional infliction of emotional distress, the tort, and state statutes, if available. the availability of 2016] Do Not Delete Not Delete Do deadlocked on the conspiracy charge. The federal district judge the conspiracy charge. The federal deadlocked on subsequently threw out the not apply. race, religion, or sex, then existing hate crimerace, religion, or sex, then existing statutes may apply. For example, Hate California’s Statute criminalizes crimes committed based on the following of the characteristics victim: , , nation A. Legislation § 528.5 (West 2016). termsHe of service. claimed because MySpace, jurisdiction the in Beverly Hills,headquartered host, is California. Ashley Grills wasimmunity granted Lori. The criminal against to testify charges were based on Lori Drew the MySpace (1) setting up (2 fictitious name, account under a Megan, and (3) inflicting emotional Megan. distress upon The provides that “[w]hoeverfederal statute intentionally . . . authorized accesses a computer without or exceeds authorization obtains . . . informationaccess, and thereby from protected any computer” has committed a crime. C Y 37838-chp_19-2 Sheet No. 11 Side A 05/09/2016 12:16:02 A 05/09/2016 11 Side Sheet No. 37838-chp_19-2 37838-chp_19-2 Sheet No. 11 Side B 05/09/2016 12:16:02 . . . M K see C Y NN ODE ODE TAT DUC A .C .C .S IV EV ODE ENN .C 4/23/16 9:31 AM AM 9:31 4/23/16 .C AL A . § 193-F:9; . § 10-222d(a)(2) NN NN .A .A The New York The New York is an example of 17 12 TAT TAT 702 F.3d 655, 673 (2d Cir. .S , .S EV R EN [Vol. 19:2 [Vol. 11 .G . ch. 71, § 37O(a); N.H. R § 13-32-15 (West 2016); T . tit. 16, § 11(a)(32) (West 2016). ONN Columbia, has anti-bullying . § 18A:37-14 (West 2016); N.Y. E NN NN A NN AWS .A L Years of anti-Semitic states withstates these statutes. .A 13 AWS TAT SAU #37, 123 A.3d 1016, 1019–20 (N.H. 2015) TAT ral School District .L .S , T EN ODIFIED .G The U.S. Supreme held that Court has 14 ASS 15 . §§ 784.048(2), 1006.147(3)(b) (West 2016); G . §§ 784.048(2), 1006.147(3)(b) (West 2016); Chapman Law Review Law Chapman Zeno v. Pine Plains Cent. Sch. Dist. NN §§ 422.55, 422.6 (West 2016). .A . § 6-18-514 (West 2016); C ODE NN TAT C A LaShonda D. v. Monroe U.S. 629, 633 (1999). Cty. Bd. of Educ., 526 see also .S , 997 F. Supp. 2d 1071, 1073 (E.D. Walsh v. Tehachapi Unified Sch. Dist., LA ODE ENAL Questions to ask about these statutes are: ex rel 16 .C .P at 379; T.E. v. Pine v. T.E. Bush Cent AL RK For example, California expressly grants a private . C C e.g. See, (lawsuit T.E. v. Pine Bush Cent. Sch. Dist., 58 F. Supp. 3d 332 (S.D.N.Y. 2014) Id. Davis A Every District state, and the of Hate crime a major should be statutes action in cause of 1) Are they criminal, civil, or both? 2) Do cause of action? they provide a private Gauthier v. Manchester Sch. Dist. 17 11 12 13 14 15 16 § 11(7) (McKinney 2016); S.D. C . § 193-F:4(II)(b) (West 2016); N.J. S . §§ 49-6-4502, 4503 (West 2016); V NN NN AW B. Cyberbullying Statutes Statutes B. Cyberbullying statutes. Their breadth and depth vary greatly. Manystatutes. Their breadth and depth have been amendedcyberbullying among to include actionable the offenses. 2012) (racial taunting and harassment resulting in award of $1,000,000 plus fees and costs). 2012) (racial taunting and harassment resulting cyberbullying complaintscyberbullying in Homophobicracist statements and seem in to abound cases. Manycyberbullying students committing cases involve cyberbullied for being . suicide after being of Jewish students were by the school not effectively addressed held that thedistrict. The court knowledge school’s that the responses were deliberate indifference inadequate can constitute liability. for purposes of (West 2016); F Cal. 2014). was brought pursuant to Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 1983, and Civil Rights Act of 1964, 42 U.S.C. §was brought pursuant to Title VI of the New York’s Civil Rights Law). § 20-2-751.4(a) (West 2016); M 20-2-751.4(a) § A L A 362 Do Not Delete Not Delete Do case of , or association with or association orientation, sexual with group or a person characteristics. or perceived those actual § 52.1(b) (West 2016). On the other hand, the statute expressly provides § 52.1(b) (West 2016). On the other hand, the New Hampshire statute expressly provides that it does not create a private right of action for enforcement of the chapter against any school district, chartered public school, or the state. N.H. a school district’s “deliberate indifference” to a student’s sexual “deliberate indifference” to a school district’s harassmentTitle IX of the Education of another student violated Amendments of 1972. also cyberbullying based on religion. cyberbullying based (holding that § 193-F:9 barred a lawsuit brought against the school district for failing to (holding that § 193-F:9 barred a lawsuit brought against the school district for failing notify the parent of bullying within forty-eight hours). 37838-chp_19-2 Sheet No. 11 Side B 05/09/2016 12:16:02 B 05/09/2016 11 Side Sheet No. 37838-chp_19-2 37838-chp_19-2 Sheet No. 12 Side A 05/09/2016 12:16:02 . , NN .A The 24 TAT 4/23/16 9:31 AM AM 9:31 4/23/16 .S EN .G . § 49-6-4502(a)(3)(B) ONN 363 363 NN A C § 94367(f) (West 2016). Tinker Gone Viral: Diverging ODE ODE The Supreme Court The Supreme .C 22 .C . 737 (2013). . § 14-458.1 (West 2016). see also § 653.2(b) (West 2016). For an EV NN DUC ENN . A ODE T .E C The dividing line between line The dividing AL TAT 23 .S see also U.S.F. L. R ENAL EN G .P , 47 19 N.E.3d 480, 486 (N.Y. 2014). AL , 18 , C . 2729 (2013); Daniel Marcus-Toll, 21 . § 193-F:4(I)(b); EV See, e.g. . § 49-6-4505(c) (West 2016); NN NN 19 L. R A Tort Perspective on Cyberbullying on Perspective A Tort .A A 20 TAT ODE .S , People v. Marquan M. ORDHAM .C EV F R Tinker v. Des Moines Independent Community School ENN that student protests are protected by the Free Speech that student protests are protected , 81 or employees? on-campus school computers, acts involving and servers, networks? schools? (a) (West 2016). l See, e.g. See, Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) (holding Fenn, For detailed analysis of the First Amendment issue, see generally Matthew For example, the anti-bullying statute expressly includes building to both on-campusFor example, New Hampshire’s anti-bullying act applies and California permits a private postsecondary educational institution to adopt rules who For example, Tennessee’s statute grants immunity to school employees 3) What cover? do they A problem with is that if written such statutes or construed A commonality in the statutes is to reference cyberbullying in terms of “electronic A commonality in the statutes is to reference 4) What are the penalties? schools? only apply to 5) Do they off-campusdo they apply to 6) If so, just bullying, or 7) Do they apply to private schools as well as public to private schools as well as public 7) Do they apply 8) Do they apply to the parents of minor8) Do they apply perpetrators? to all perpetrators, minor9) Do they apply or adult? 10) Do they grant immunity10) Do they grant to school boards, administrators, 22 23 24 18 19 20 21 M K too broadly, they maytoo broadly, they withAmendment the First interfere freedom rights of the student. of speech (West 2016). students wearing black armbands to protest the Vietnam War were protected under the First Amendment). A Web of Liability: Legislation Put Public Schools in a Sticky Does New Cyberbullying Situation? a false profile or website, posing as a minor in an internet chat room, email or instant in an internet chat room, email or instant a false profile or website, posing as a minor messaging, or following a minor online. N.C. with a pupil’s educational opportunities or off-campus “if the conduct interferes of the school or school-sponsoredsubstantially disrupts the orderly operations activity or event.” N.H. and regulations designed to prevent hate violence. C communications devices.” § 10-222 2016] Do Not Delete Not Delete Do Threshold Tests for Analyzing School of Regulation of Off-Campus Digital Student Speech held in District Clause of the First Amendment. analysis of California’s approach to cyberbullying, see generally Atticus N. Wegman, analysis of California’s approach to cyberbullying, Cyberbullying and California’s Response protected speech and unprotected speech is unsettled, but it is protected speech and unprotected violence are not protected. clear that threats of physical promptly report acts of harassment, , bullying, or cyberbullying to the promptly report acts of harassment, intimidation, procedures set forth in the school district appropriate official in accordance with the policies. T C Y 37838-chp_19-2 Sheet No. 12 Side A 05/09/2016 12:16:02 A 05/09/2016 12 Side Sheet No. 37838-chp_19-2 37838-chp_19-2 Sheet No. 12 Side B 05/09/2016 12:16:02 M K 28 C Y A 29 see also Bethel 4/23/16 9:31 AM AM 9:31 4/23/16 . 1213. that the 30 34 EV .L.R IS W The The , 2003 32 YBERBULLYING Cyberbullying, Cyber-Harassment [Vol. 19:2 [Vol. 478 U.S. 675, 685 (1986) (holding C , child pornography, fraud, child pornography, Morse v. Frederick 27 the Supreme Court noted that Court noted the Supreme AMPUS 26 his concurring opinion in , -C FF ould ‘materially and substantially O ground for banning student non-school ground for banning 25 Chapman Law Review Law Chapman 33 Similarly, comments bad reviews and student on AMPUS OR 31 . 3395 (2014); Renee L. Servance, Bethel Sch. Dist. No. 403 v. Fraser -C EV N O , 132 S. Ct. at 2544. , 393 U.S. at 509 (citing Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)). , 393 U.S. at 509 (citing Burnside v. Byars, L. R , 551 U.S. at 410. II. see also ; United v. Alvarez States (2012). United States v. Alvarez, 132 S. Ct. 2537 Id. Alvarez Morse v. Frederick, 551 U.S. 393, 397 (2007). Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. Dist., 494 F.3d 34 (2d Cir. 2007). 496 F. Supp. 2d 587 (W.D. Pa. 2007); Layshock v. Hermitage Sch. Dist., Schmisky v. Higgins, 2014 WL 1710962 (Cal. Ct. App. Apr. 29, 2014). Cir. 1988). Burch v. Barker, 861 F.2d 1149 (9th Morse Tinker On the other hand, the parody of a school should be On of a school principal should the other hand, the parody In We start with the premiseboards have more that school The Supreme Court held in ORDHAM 26 27 28 29 30 31 32 33 34 25 school could act against on-campus vulgar and lewd speech. However, Justice Brennan, in a professor’s teaching are protected speech. teaching are a professor’s posting about killing a teacher should not be protected. posting about killing the school district was able to prohibit and punish lewd and vulgar speech or behavior). the school district was able to prohibit and Beverly v. Watson, 78 F. Supp. 3d 717 (N.D. Ill. 2015) ( by administration to shut Beverly v. Watson, 78 F. Supp. 3d 717 (N.D. Ill. 2015) (attempt by administration to down an off-campus professor critical of the administration). protected speech. defamation, statements or criminal integral to conduct. 82 F 364 Do Not Delete Not Delete Do Websites of illegal drugs are not protected. for the purchase Court held that on expressive conduct could be be could conduct expressive on that prohibitions held Court “w if the conduct upheld with the requirementsinterfere discipline in the of appropriate of the school.’” operation the First Amendmentthe First fighting words, not protect does true threats, incitements, , of administrators is not a of administrators sponsored material. and the Conflict Between Schools and the First Amendment and the Conflict Between Schools and the First power to regulate on-campus speech and conduct than off-campus remainsspeech and conduct. The issue open as to the extent of to punish off-campusthe jurisdiction of school boards cyberbullying. Much of the traditional schoolyard bullying occurred on school an electronic connection anywhere grounds. Today, anyone with in the world attack. Anyone can initiate a cyberbullying else in the world can join in if the website used to incite the attack is an open one. The communications may be through an off-campus web host. The only “on-campus” link might be that a few students, teachers, or administrators will see it and discuss it at school. 37838-chp_19-2 Sheet No. 12 Side B 05/09/2016 12:16:02 B 05/09/2016 12 Side Sheet No. 37838-chp_19-2 37838-chp_19-2 Sheet No. 13 Side A 05/09/2016 12:16:02 4/23/16 9:31 AM AM 9:31 4/23/16 42 40 The student’s The student’s 38 39 365 365 . The rap was directed 41 echoed Justice Brennan’s Justice Brennan’s echoed , “conduct by the student, , “conduct by the 36 Chief Roberts Justice in his 527 F.3d 41 (2d Cir. 2008); Boucher v. Sch. , 35 Tinker teachers and described violent acts teachers and described violent , wrotewould the situation that be : “Had same delivered the Fraser speech : 134 F.3d 821 (7th Cir. 1998). Doninger v. Niehoff , Morse v. Frederick A Tort Perspective on Cyberbullying on Perspective A Tort 37 Fraser see also Kowalski v. Berkeley County School , 551 U.S. at 393. at 405. at 573–74; Id. 478 U.S. 675, 688 (1986). Bethel Sch. Dist. No. 403 v. Fraser, Morse Id. v. Des Moines Indep. Cmty. Tinker Sch. Dist., 393 U.S. 503, 513 (1969). v. Berkeley Cty. Sch., 652 F.3d 565 (4th Cir. 2011). Kowalski Id. F.3d 379 (5th Cir. 2015). Bell v. Itawamba Cty. Sch. Bd., 799 Postings that interfere with the work and discipline of the An off-campusrap entitled “PSK The Truth Needs to Be State and federal courts have wrestled withState and federal the defining line Yet, off-campus electronic postings are not necessarily Courts have upheld disciplinary actions against students Courts have upheld disciplinary 35 36 37 38 39 40 41 42 M K school, that create a substantial disorder and disruption in the school, that create a substantial school, that interfere with rights to be secure and left students’ alone, are subject to disciplinary school. action by the different with off-campus speech: “If respondent had given the had given the “If respondent with off-campusdifferent speech: same he could not have environment, of the school speech outside simplybeen penalized because government considered officials to be inappropriate.” his language School DistrictSchool v. Fraser in concurrence off-campus website singled out a specific student for harassing, bullying, and intimidation, tagging her with herpes. Bd. of Sch. Dist. of Greenfield Dist. Sch. of Bd. at the school and contained threats of physical violence. at the school and contained threats majority in opinion 2016] Do Not Delete Not Delete Do in class or out of it, which for any reason . . . materially disrupts . . it, which for any reason in class or out of classwork invasion of the or involves substantial disorder or immunizedrights of others is, of course, not . . . .” between web boards to discipline off-campus the ability of school reflect poorly on somepostings that or students, teachers, administrators. A consensus seemsthe to be evolving around interference or not the act had a substantial issue of whether with(substantial disruption) or the rights of school discipline to language in others. Looking subject to school discipline, even if madesubject to school discipline, even directly toward students at the school. For example, a student followed up on a creative whose off-campus over to the school campus, postings carried such as in against them, was not protected speech. Told,” which named two in a public forum the school context, it would outside have been protected.” C Y 37838-chp_19-2 Sheet No. 13 Side A 05/09/2016 12:16:02 A 05/09/2016 13 Side Sheet No. 37838-chp_19-2 37838-chp_19-2 Sheet No. 13 Side B 05/09/2016 12:16:02 M K C Y 43 4/23/16 9:31 AM AM 9:31 4/23/16 146 P.3d 510 (Cal. 2006). , 46 the defamatory remark [Vol. 19:2 [Vol. 47 Off-campus that postings, 44 Barrett v. Rosenthal 45 EFAMATION D see also III. Chapman Law Review Law Chapman Courts have held the immunity applies him in his occupation.” 48 § 45 (West 2016). ODE .C IV .C AL 92 F. Supp. 2d 1088 (W.D. Wash. 2000). Emmett v. Kent Sch. Dist. No. 415, Sagehorn v. Indep. Sch. Dist. No. 728, 2015 WL 4744482 (D. Minn. Aug. 11, 2015). 933 (3d Cir. 2011). J.S. v. Blue Mountain Sch. Dist., 650 F.3d 915, C v. Globe Int’l, Inc., 965 P.2d 696, 704 (Cal. 1998). Khawar 47 U.S.C. § 230(c)(1) (2012); Anyone or republishing Anyone publishing An off-campustweet a risk to the school was not posing The media called it a “hit list,” but it was but The media no clear that it a “hit list,” called Defamation, libel since the defamation usually is by written Defamation in cyberbullying cases where would clearly apply and unprivileged publication California defines libel as “a false 43 44 45 46 47 48 protected by the First Amendment.protected by the 366 Do Not Delete Not Delete Do event, and a school-sponsored nor at are neither school-sponsored which at the school, are a substantial disruption do not present discipline. not subject to school writingassignment writingyear of the previous your own mock by posting two obituary the school. of students at obituaries was said the site The page and was by the school not sponsored for entertainment readers to submit also asked only. The student on whosuggestions mock i.e. receive a should die next, obituary. overturned the felt threatened by it. The court student at school held the posting was discipline and student’s speech. protected can be liable as a publisher. That wouldThat can be liable as a publisher. seemingly include the ISP. However, in the Communications Congress Decency Act of 1996, exempted from ISPs liability as publishers in , commonly referred to as the Internet Freedom and Family provides: Act. The section provider or user of “[n]o an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” means,false is generally defined as the publication of a statement that holds one up to hatred, , or ridicule, or The publication need only causes one to be shunned or avoided. be to one person. a defamatorythe perpetrator is publishing statement about the victim. The false statement constitutes libel since the electronic statement is in written form. which person to hatred, contempt, expose any ridicule . . . by words or obloquy, or which causes him to be shunned or avoided, or has a tendency to injure 37838-chp_19-2 Sheet No. 13 Side B 05/09/2016 12:16:02 B 05/09/2016 13 Side Sheet No. 37838-chp_19-2 37838-chp_19-2 Sheet No. 14 Side A 05/09/2016 12:16:02 L. 53 State Baker OFSTRA 4/23/16 9:31 AM AM 9:31 4/23/16 A History of see also , 19 H ISTRESS or if the ISP the ISP or if D 49 Alcorn v. Anbro . 1977); 367 367 NST I . 2012). AW .L NST M I MOTIONAL ORT State Rubbish Collectors emotional harm and, if the T E of emotional is a distress AW .L onal, wrongful act, no matter onal, wrongful act, M § 566 (A ACIE F An Analysis of the “Prima Facie Tort” Cause of harm, also for the bodily harm.” ORTS d ethnic in The Restatement (Third) of Torts § 46 (A T 52 , 240 P.2d at 282. 240 P.2d 282 (Cal. 1952). RIMA OF which involved physical threats, and ) ORTS P T 54 NFLICTION OF , I V. OF ) ECOND rty submittedrty profile a false based on dicta by Lord Bowen in the 1889 based on dicta by Lord Bowen The next, logical step will to formally be (S 56 50 HIRD 55 . A Tort Perspective on Cyberbullying on Perspective A Tort 721 P.2d 87 (Cal. 1986); Schimsky v. Higgins, 2014 WL 1710962 721 P.2d 87 (Cal. 1986); Schimsky v. Higgins, , (T Morris D. Forkosch, 51 See NTENTIONAL ESTATEMENT I R ESTATEMENT IV. State Rubbish Collectors Ass’n See of the most famous cases exemplifying this cause of action, see For one R 216 (Cal. 1970). Alcorn v. Anbro Eng’g, Inc., 468 P.2d For a history of the prima facie tort, see Kenneth J. Vandevelde, Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003). Cir. 2003). Green v. America Online (AOL), 318 F.3d 465 (3d California adopted the tort in California adopted the tort The tort of intentional infliction The tort of intentional Under of , the privilege common the law The early was a very strict in its pleadings. If The American common law developed the catch-all therefore 51 52 53 54 55 56 49 50 . 447 (1990). M K EV even if the third pa if the even (Cal. Ct. App. Apr. 29, 2014) (protecting inconsistently bad evaluations and reviews of (Cal. Ct. App. Apr. 29, 2014) (protecting adjunct professor). v. L.A. Herald Exam’r Association v. Siliznoff Prima Facie Tort: The Origins of a General Theory of 2016] Do Not Delete Not Delete Do R well-developed a young tort that traces back to cause of action for the mid-twentieth century. then extended it to racial an acted negligently. generally protects the right to express an opinion, such as an opinion, right to express protects the generally reviewsnegative or statements, about movies, not false facts but mention not to plays, and politicians, books, administrators and teachers. emotional harm causes bodily provides: “[a]n actor whoprovides: “[a]n by extreme conduct and outrageous recklessly causes severe emotionalintentionally or harm to to liability for that another is subject Engineering, Inc extend it to cyberbullying. cause of action did not fit into one of the established writs,cause of action did not fit into one then it could not proceed. Thus, an intenti how egregious, which did not fit into such traditional writs as , , , to chattels, , or trespass, would fail. “prima facie” tort, Rubbish Collectors Ass’n v. Siliznoff, C Y 37838-chp_19-2 Sheet No. 14 Side A 05/09/2016 12:16:02 A 05/09/2016 14 Side Sheet No. 37838-chp_19-2 37838-chp_19-2 Sheet No. 14 Side B 05/09/2016 12:16:02 . M K 57 . C Y OLUM : “It has , 52 C 4/23/16 9:31 AM AM 9:31 4/23/16 He cited cited He [1892] App. 59 aff’d. 58 . 1979). NST I [Vol. 19:2 [Vol. AW e intentional infliction of e intentional infliction .L Aikens v. M at which the is calculated in The Prima Facie Tort Doctrine 64 with many jurisdictions not The Prima Facie Tort Doctrine in New York— another shall be liable unless the another shall be § 870 (A 62 ORTS . 530 (1968). T EV 61 OF ) Chapman Law Review Law Chapman L. R S . 465 (1957); Note, ’ and the earlier and the earlier in decision 60 EV ECOND . OHN (S MogulSteamship Co. v. McGregor, Gow & Co Others only allow the prima facie tort to proceed L. R .J 63 T , 42 S ORNELL at 613. ESTATEMENT Aikens v. Wisconsin, 195 U.S. 194, 204 (1904) . 503 (1952). In New York, see Note, R the prima facie tort include: California (Cervantez v. J.C. States that have recognized These jurisdictions include: District of Columbia (Nix v. Hoke, 139 F. Supp. 2d Co. v. McGregor, Gow & Co., 23 QBD 598 (1889), Mogul S.S. Id. v. Cronin, 107 Mass. 555, 562 (1871) (“The intentional causing of such loss Walker , 42 C The primaremains facie tort and underutilized Justice OliverJustice Wendell Holmes the prima advanced facie tort The primahas not been uniformly facie tort adopted in the One who intentionally causes injury to another is subject to liability to One who intentionally causes injury to is generally culpable and not the other for that injury, if his conduct justifiable under the circumstances. This liability may be imposed not comealthough the actor’s conduct does traditional within a category of tort liability. 61 62 63 57 58 59 60 EV been considered that, primabeen considered facie, th temporal damage as a matter is a cause of action, which, of whatever maythe form be of , law, substantive escape.” if the is to requires a justification Another Writ? recognizing it. underrecognized. Underunderrecognized. prima the anyone who facie tort, injury to intentionally causes The Restatementacts were privileged. (Second) of Torts provides: in the 1904 Supreme Court case of Cas. 25 (HL). Penney Co., 156 Cal. Rptr. 198, 206 (Cal. 1979)); Delaware (Kaye v. Pantone, Inc., 395 268 A.2d 369, 373 (Del. Ch. 1978)); Missouri (Porter v. Crawford & Co., 611 S.W.2d 265, (Mo. Ct. App. 1980)); and New York (Advance Music Corp. v. Am. Tobacco Co., 70 N.E.2d 401, 403 (N.Y. 1946)). 2d 125, 132 (D. D.C. 2001)); (Whitney Info. Network, Inc. v. Gagnon, 353 F. Supp. 200 1208, 1213 (M.D. Fla. 2005)); Ohio (Phung v. Waste Mgmt., Inc., 532 N.E.2d 195, 2d (Ohio App. 1988)); Pennsylvania (Hughes v. Halbach & Braun Indus., Ltd., 10 F. Supp. to another, without justifiable cause, and with the malicious purpose to inflict it, is of to another, without justifiable cause, and itself a wrong.”). L. R Action 368 Do Not Delete Not Delete Do He wrote: th to do “[I]ntentionally ordinary course of events to damage, course of events ordinary and which does, in fact, damagetrade, is or person’s in that other another excuse.” just cause or if done without actionable British of case if no other cause of action exists. United on establishing the prima States. Jurisdictions are split facie tort cause of action, Mogul Steamship Mogul Walker v. Cronin 37838-chp_19-2 Sheet No. 14 Side B 05/09/2016 12:16:02 B 05/09/2016 14 Side Sheet No. 37838-chp_19-2 37838-chp_19-2 Sheet No. 15 Side A 05/09/2016 12:16:02 at is 69 Id. 65 , 4/23/16 9:31 AM AM 9:31 4/23/16 The responses 67 369 369 D.C. v. R.R. v. D.C. the primathe in category facie I’ve . . . wanted to kill you. If I g justification. The intent is The intent g justification. c slurs and threats of violence, c slurs and threats of violence, lover. I hope you burn in hell.” Northern California, placed Daniel California, Northern ALIFORNIA 66 Long v. Beneficial Fin. Co., 330 N.Y.S.2d 664, 668 VI. C VI. see also § 653.2 (West 2016). A Tort Perspective on Cyberbullying on Perspective A Tort One student wrote: to rip out your “I want ODE 68 C , Richard A. Pulaski Const. Co. v. Air Frame Hangers, Inc., 950 A.2d 868, ENAL , 106 Cal. Rptr. 3d at 404–05. .P at 405. A more detailed version of the comments is found in the dissent. at 407–08. AL D.C. Id. See, e.g. See, App. 2010). D.C. v. R.R., 106 Cal. Rptr. 3d 399 (Ct. C Id. Cyberbullyinginto fall should The favorable comments wereaccompanied by scurrilous Very few have worked civil cyberbullying cases their way Daniel’s father, Lee Caplin, contactedDaniel’s Harvard-Westlake and Danielstudent at the private Caplin, a fifteen-year-old 64 65 66 67 68 69 M K jurisdictions whichjurisdictions intentional because of the the tort accept act lackin of the outrageousness injure the victim.clearly to were not always what he expected. what he expected. were not always comments, including homophobi which are all too common in cyberbullying scenarios. Thirty-four with six perceived as death posts were viewed as offensive threats. Twenty-three asserted Daniel was gay, some using the word “faggot.” through the judicial system.through the judicial California case, A not a good auger for the future even though California makes for the future even though not a good auger it electronic communicationillegal to use any with to instill intent person. fear or harass another fucking heart and feed it to you . . . fucking heart and feed it to you ever see you I’m . . . going to pound your head in with. going to pound an ice pick. . . ever see you I’m Fuck you, you dick-riding penis 491, 499 (W.D. Pa. 1998)); (Perdue v. J.C. Penney Co., 470 F. Supp. 1234, 1239 491, 499 (W.D. Pa. 1998)); Texas (Perdue (Unlimited Screw Prod., Inc. v. Malm, (S.D.N.Y. 1979) (applying Texas law)); and 781 F. Supp. 1121, 1130 (E.D. Va. 1991)). 2016] Do Not Delete Not Delete Do the Los Angeles Police Department, which in turn contacted the as credible and suggested the FBI. The LAPD viewed the threats moved to They Caplins move. commutedin a school there, and the father and forth back between Northern business in Los Angeles. California and his The Harvard-Westlake two articles student published 440–45. 876 (N.J. 2008) (New Jersey); (N.Y. App. Div. 1972) (New York). Harvard-Westlake Angeles, was School in Los an aspiring actor several gigs and an albumand singer with coming He out. opened a website to promote members his activities and allowed post commentsof the public to on a “guest book.” C Y 37838-chp_19-2 Sheet No. 15 Side A 05/09/2016 12:16:02 A 05/09/2016 15 Side Sheet No. 37838-chp_19-2 37838-chp_19-2 Sheet No. 15 Side B 05/09/2016 12:16:02 M K 74 C Y 70 4/23/16 9:31 AM AM 9:31 4/23/16 73 was subsequently at 412. [Vol. 19:2 [Vol. Id. , intentional infliction of , intentional infliction A statutory violation of A statutory causes of action, including: 71 was added later. sclosed the Caplins’ newCaplins’ the sclosed residence 72 § 425.16 (West 2016). Chapman Law Review Law Chapman The case against the parents of the alleged The case against the parents 77 ODE The anti-SLAPP statute was enacted to protect The anti-SLAPP statute was enacted §§ 51.7, 52.1 (West 2016). .C 75 Caplin v. Harvard-Westlake 76 ODE ROC . § 425.16. .C .P IV IV ROC , 106 Cal. Rptr. 3d at 406. .C .C .P . § 1714.1. AL AL IV IV D.C. Assistant District Attorney assigned to the case filed a declaration “stating The Harvard-Westlake Sch., 98 D.C. v. Cal. Rptr. 3d 300, 304 (Ct. App. 2009). C C Caplin v. Harvard-Westlake Sch., No. BC 332406, 2008 WL 4721598, at *2 (Cal. C C The result is that the statute is often raised by other The result is that the statute Daniel and his parents, Lee and Ginaand his parents, Daniel suit Caplin, filed sought to dismiss the case on several grounds, The of the parents, if proven, is limitedThe vicarious liability of the parents, by 70 71 72 73 74 75 76 77 against six students and their parents, Harvard-Westlake their parents, six students and against School, and three school employees. Board of Directors, The the school’s original complaint eleven contained threats and hate upon another with death , assault crimes, invasion of privacy, defamation emotional negligent infliction of emotional distress, distress, fraud in the inducement and various conspiracy of a , to these claims.counts attached that, based on the , the district attorney’s office declined to prosecute any of the that, based on the evidence, the district attorney’s students who had posted messages on D.C.’s Web site.” Super. Ct. Mar. 12, 2008). including: violation of California’s anti-SLAPP suit statute, of California’s including: violation public participants, especially opponents, of projects against public participants, especially developers and supporters with the lawsuits by the proposal’s intent of muzzling The statute is broadly written: “A the opponents. arising fromcause of action against a person any act of that person petition or free speech under the in furtherance of the right of UnitedConstitution in States Constitution or California connection with shall be subject to a special motion a public issue to strike . . . .” California’s Hate Crime 370 Do Not Delete Not Delete Do protected speech pursuant to the First Amendment,protected speech and on a factual basis, the statement was meant as a joke, intended as “jocular humor.” and Daniel’s school. Harvard-Westlake school. and Daniel’s or expel did not suspend District The Los Angeles students. the offending Attorney declined to prosecute. discretion and prosecutorial exercised about the case, one of which one the case, about di cyberbully in defendants, such as cyberbullies whodefendants, such as cyberbullies claim both First Amendment protections and the statute as legal defenses. They claim that their views represent a matter importance. of public statute to $25,000. 37838-chp_19-2 Sheet No. 15 Side B 05/09/2016 12:16:02 B 05/09/2016 15 Side Sheet No. 37838-chp_19-2 37838-chp_19-2 Sheet No. 16 Side A 05/09/2016 12:16:02 D.C. D.C. 82 79 4/23/16 9:31 AM AM 9:31 4/23/16 These fees 80 371 371 e prevailing plaintiff can recover e prevailing plaintiff ONCLUSION C The court on remand awarded $208,928.34 The court on remand $208,928.34 awarded 83 . 81 A Tort Perspective on Cyberbullying on Perspective A Tort § 51.7 (West 2016). ODE Othercommon the reiterated have courts law view .C 78 , 2011 WL 10653443, at *1. IV .C Boston v. Athearn, 764 S.E.2d 582, 587 (Ga. Ct. App. 2014). at 325. AL *1 (Cal. Caplin v. Harvard-Westlake Sch., No. BC 332406, 2011 WL 10653443, at See 2009). D.C. v. Harvard-Westlake Sch., 98 Cal. Rptr. 3d 300, 323 (Ct. App. Id. Caplin C We early days of the computer are still in the revolution. can anonymously cyberbully Today’s attack anyone anytime The law, both statutory and common, is responding to the California has since enacted a statute that now purports to since enacted a statute California has Harvard-Westlake arbitration the mandatory invoked 78 79 80 81 82 83 M K dismissed. bar this type of clause in cases similar to that in v. Harvard-Westlake v. Social media has transformed the old schoolyard bully into the bully’s anti-social behavior wascyberbully. The schoolyard usually limited in time and space. The victim could usually identify the bully. from anywhere with an internet connection. The resulting psychological injury may be severe in vulnerable victims, sometimes teenagers, leading to . The cyberbullies, often can be especially malevolent, and creative in their actions, clever, ranging from threats to defamation. Teenagers who could never be a physical bully can easily become a cyberbully. new phenomenon of cyberbullying. However, an overall consensus has yet to emerge. In addition, resolution may depend that parents are not vicariously liable for the acts of their for the acts vicariously liable are not that parents supervise or in failing to for negligence but can be liable children, For example,their children. control in not negligence could removingexistence. learning of its page after the offending in attorney fees and costs against the plaintiff parents, Lee and the plaintiff parents, Lee and and costs against in attorney fees added to it. the statutory rate of interest Gina Caplin, with Super. Ct. Nov. 1, 2011). 2016] Do Not Delete Not Delete Do provision in the school’s enrollmentprovision in the provision contract. The party wouldprovided the prevailing attorney fees and receive held for Harvard-Westlakecosts. The arbitrator and awarded the fromschool $521,227.68 The California Court of the parents. that only th Appeals held Hate California’s attorney fees under Crime Statute. were improperly therefore awarded and the case was remanded for reconsideration. C Y 37838-chp_19-2 Sheet No. 16 Side A 05/09/2016 12:16:02 A 05/09/2016 16 Side Sheet No. 37838-chp_19-2 37838-chp_19-2 Sheet No. 16 Side B 05/09/2016 12:16:02 M K C Y 5/3/2016 3:185/3/2016 PM [Vol. 19:2 [Vol. Chapman Law Review Law Chapman Legislatures are mandating that school districts adopt adopt districts school that mandating are Legislatures public apply to only statutes many that in exists A larger gap 372 Do Not DeleteDo upon a United States Supreme Court decision because of an an of because decision Court Supreme States a United upon an off-campus from speech free of rights students’ in ambiguity charges criminal bring to often unwilling are Prosecutors . law. criminal the in clarity of lack a of because half, than Less though, procedures. and policies anti-bullying measures. have cyberbullying to adopt of the flexibility with to apply, have will thereby Courts schools. distress, defamation, emotional rules in the common law, existing tort. cyber new the to tort facie prima and the 37838-chp_19-2 Sheet No. 16 Side B 05/09/2016 12:16:02 B 05/09/2016 16 Side Sheet No. 37838-chp_19-2