Facing the schoolyard bully is a classic part of adolescence, personified in movies and literature; it is an almost universal rite of passage that on the road to adulthood. However, today’s world of technology puts a new twist on this old and unfortunate schoolyard tradition. The Internet chat room, the social network, the text message – these are the new tools of the “Cyber Bully.” The point: any child can be a victim anywhere or anytime.
How does today’s victim of cyberbullying escape? The simple answer is that for some there is no escape. Even worse, New York courts continue to fail to acknowledge that the computer, in the hands of today’s youth, should be recognized under the law as a “dangerous instrument” with foreseeable consequences.
New York courts fail to recognize the threat of cyberbullying
In the recent New York Supreme Court case Finkel v. Dauber the plaintiff alleged defamation against fellow children and negligent entrustment against their parents. The complaint arose out of an instance of cyberbullying where the defendant children posted a series of derogatory comments about the plaintiff in a private Facebook group. The court granted summary judgment to the defendants and dismissed the complaint on both grounds.
First, in regards to the claim of defamation the court found that the plaintiff did not state a cognizable cause of action because the comments, while troubling, were so outrageous that “they do not constitute statements of fact” under the standard for defamation in New York. Second, the court refused the claim against the defendant parents for negligent entrustment stating that “there is no cause of action for negligent supervision of a child, absent an allegation that the parent entrusted the child with a dangerous instrument which caused harm to a third party.” Furthermore, the court cites the New York Court of Appeals case Rios v. Smith, which states that liability for negligent entrustment “is limited to circumstances where a parent’s conduct creates a particularized danger to third persons that is plainly foreseeable.”
After expounding these rules the court then states that “To declare a computer a dangerous instrument in the hands of teenagers in an age of ubiquitous computer ownership would create an exception that would engulf the rule against parental liability.”
I find that the court’s reasoning that a computer cannot be categorized as a “dangerous instrument” merely because of its “ubiquitous” status not only avoids the logical extension of the term “dangerous instrument” to computers under New York statutory definition, but also demonstrates a lack of recognition of the dangerous potential that computers and technology have and the urgent need for a civil remedy.
First, New York Penal Law § 10.00 (13) defines the term “dangerous instrument” to include “any instrument, article or substance, including a ‘vehicle’.” In the context of this statutory definition, it would seem reasonable to argue that teenage “computer use” is “no more ubiquitous” than teenage “vehicle use.” Thus, by way of analogy how can the New York court avoid the application of the term “dangerous instrument” to the computer(s) used to perpetuate the cyberbullying in Finkel v. Dauber? Furthermore, a recent New York Appellate Division case, People v. Mateo, affirmed a determination that a pit bull terrier constituted a “dangerous instrument” under the definition of New York Penal Law § 10.00 (13). Again, it seems reasonable that in the context of the Finkel v. Dauber court’s reasoning teenage “computer use” is not significantly more “ubiquitous” than teenage “dog ownership.” However, moving beyond the semantics of the court’s interpretation of the term “dangerous instrument”, what is most troublesome about the Finkel v. Dauber decision is the lack of recognition of how computers and technology used as instruments of bullying are not only “dangerous instruments,” but that for many reasons they may likely pose a uniquely greater danger to today’s youth.
The unique danger of cyberbullying
Why is cyberbullying uniquely dangerous? At first thought it may seem counterintuitive that cyberbullying could be more detrimental than what happens on a traditional playground. After all, emails and text messages are just words and a cyber bully obviously has no ability to lay a physical hand on his or her intended victim. However, research in the field suggests that this assumption is likely incorrect and that the circumstances that technology creates that can make cyberbullying more detrimental to its victims.
Andre Sourander, a professor at Turku University, notes in his study published in the Archives of General Psychiatry “traditional bullying typically occurs on schoolgrounds, so victims are safe at least within their homes. With Cyberbullying, victims are accessible 24 hours a day, seven days a week. There is no time when messages cannot be left on mobile telephones or sent via e-mail.” Furthermore, according to Sameer Hinduja, co-director of the Cyberbullying Research Center, the fact that technology allows a “connected” bully to attack his or her victim remotely may actually encourage bullies to continue the conduct because of the inherent “disconnect” between bullies and their victims. Mr. Hinduja is quoted as saying, “Behind a keyboard or the textpad of their phone, and physically distant from the victim, emboldens [cyber bullies] and frees them from normal constraints on their behavior such as their conscience, morals, social norms, and the law.”
Thus, these expert comments make it appear that cyberbullying is not just “modern bullying” that should be brushed off by adults as the same as the bullying experienced in their younger years. Rather, it is something distinctly more dangerous. The technology is not just the means by which it is inflicted, but rather the technology itself makes cyberbullying a significantly greater threat.
Regardless of how courts and legislatures choose to deal with cyberbullying, the technology that makes it possible is certainly here to stay, and it is critical for parents and educators to be aware of and prepared to deal with cyberbullying. We must understand that the consequences of not doing so can result in real tragedy. In this context it is important to remember that parents and educators are not powerless to combat cyberbullying. Organizations like the U.S. Department of Health Resources and Services Administration and the Cyberbullying Research Center provide tips for what adults can do to prevent and deal with cyberbullying.
Interestingly, while technology may be responsible for this evolution of bullying, it may also provide an excellent tool to combat it. There are numerous software and hardware products available that provide simple and cost effective ways for parents and educators to monitor computer use. These products can show parents everything their child sends and receives over the internet. While some may be hesitant to monitor their child’s every Internet move, both parents and educators need to recognize that as responsible adults it should be a duty to know what children are using the computer for. We must identify both victims and bullies alike in order to prevent tragedy and give our youth the guidance to stay connected in a responsible way.