Legal Issues

by Mike Masnick

Filed Under:
bullying, libel

Does It Makes Sense To Charge Kids & Their Parents With Libel For Online Bullying?

from the extreme-response dept

There's been lots of talk about what to do about online bullying -- even if the amount and impact of online bullying is often massively exaggerated. There have even been some attempts to outlaw online bullying or "cyberbullying" that seem to try to make it illegal to be a jerk online. These laws are of dubious legitimacy under the First Amendment.

However, it appears that one family has taken a different path to go after some online bullies. After discovering that some classmates in school set up a fake Facebook profile for a girl, they sued the kids who set up the page and their parents for libel. The student had apparently asked both the school and the police to do something about the fake page -- and in both cases they were (correctly) told that they couldn't do anything. The school couldn't get involved with off-campus speech (correct) and the police noted that no criminal laws appeared to have been broken (also correct). They also asked Facebook to take down the page, which didn't happen. That's the one that surprises me a bit. Considering Facebook's insistence on "real names" and such, you would think the company would respond relatively quickly to accusations of a fake page.

That said, is libel really the most reasonable response? It does appear that some of the statements made on the page were pretty obnoxious, and could potentially meet the bar for libel, but it's difficult to see how such a lawsuit helps anything. It did get Facebook to delete the page, so perhaps that accomplished the goal. But I can't imagine that filing lawsuits against other students helps make one more accepted in school. The fact is that kids can be obnoxious brats -- and it sounds like the kids who set up this fake Facebook page fit that description. But does that really need to be settled in court? Furthermore, suing the parents of the bullies because they paid for the internet access the kids used seems like a particularly ridiculous claim. Bullying sucks, but taking kids and their parents to court over a stupid fake Facebook profile seems like overkill in response.

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  1. icon
    aldestrawk (profile), 1 May 2012 @ 5:37pm

    Re: Re: Re: Sure the school could have done something!

    A distinction should be made in how school officials can react. Certainly a school should have a program that teaches about bullying (what constitutes bullying, what motivates bullying, and how it can be handled). They could even hold discussions in response to a particular incident. The school is not responsible for a students actions outside of school or school sponsored events. Schools should not usurp the parents authority. When a public school is in session, school officials have a role as a surrogate for the parents or as an extension of the state. Punishing speech or behavior occurring outside of school is beyond their jurisdiction. Perhaps the best response is to inform the parents of any instigator and arrange a conference if the parents agree.

    How far does the schools responsibility and authority extend? If a student accesses Facebook from school using the school equipment and internet connection, clearly the school has authority. What if the access is from a students phone during lunch break? What if the student accesses Facebook from a phone while walking or riding home or to the local fast-food joint? The answer to these questions apply not just to bullying behavior but also in the same way to any sort of speech.

    In addition to location, let's look at ownership of equipment as a factor in determining the schools authority.
    Austin Carroll, the Indiana high school student who was expelled for a profane tweet did this from his home. He used a school issued laptop which was configured to use a school server as a proxy in accessing the internet. After logging in to the school website, which is the home page upon launching the browser, he had access to the internet which appeared to him exactly the same as just going through his local ISP connection. The school claims that their ownership of the laptop and forced routing through the school network gives them the authority to censor his speech as if he was physically at school. Is it enough ownership to claim authority if Austin had used the school laptop and avoided going through the school's network? Would the same logic apply if he used a school issued pencil to write an objectionable sentence? My feeling is schools should only get involved if speech occurs at school or a school sponsored function and, if applicable, using school owned equipment.

    When a student is not at school he or she has them same free speech rights as anyone else (I am disregarding, for now, the parents say in the matter). There is no restriction on what people this speech is in reference to. They can talk about teachers, school officials, and other students. The school has no authority here even if the speech rises to libel or slander. The school can, of course, contact law enforcement or the parents playing the role of informer or counselor. Teachers do not have the same freedom, as they have a responsibility to maintain the privacy of students and are subject to restrictions that any other government employee would have.

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