I’ve had many excellent teachers over the years, perhaps none better than Nancy Leong, who taught a test prep course at the Princeton Review that helped me get into one of the better law schools in the country. Ms. Leong eventually went on to pursue a graduate degree herself, becoming an accomplished student at Stanford and now, an accomplished faculty member at the Sturm College of Law at D.U. where she is one the country’s leading scholars on the legal aspects of online harassment. She has graciously agreed to answer a few questions from an old friend on this emerging topic.
Q: What is cyber harassment?
A: Cyber harassment is a pattern of conduct that takes place online and is targeted at a particular person. It typically consists of behavior that is threatening or otherwise intended to cause serious emotional distress. The behavior can be anything ranging from emails threatening to cause physical harm to a person or her family, to blog entries and comments threatening or disparaging a person, to threatening or disparaging postings on social media such as Facebook and Twitter.
Q: When does online discourse cross the line from protected speech under the First Amendment to unprotected cyber harassment?
A: This is a great question, and one that the courts have not fully resolved. Some cyber harassment is protected speech, and some is not. Some speech is unprotected regardless of context — for example, true threats (“I’m going to kill that person”) and libel (outright lies about a person). Cyber harassment can become unprotected speech if it is sufficiently pervasive or goes on for a long time. For example, one disparaging blog post is probably still protected speech, but a blog post once a week for a year is more likely to be illegal under civil and criminal laws.
Q: How are people harmed by cyber harassment?
A: A lot of people who have experienced cyber harassment fear for their safety or for the safety of their families, loved ones and friends. Others don’t feel safe using the Internet and withdraw from the Internet altogether. We use the Internet for so many things — both professional and personal — that withdrawing from the Internet is rarely costless.
Q: Is cyber harassment a wrong that should have a legal remedy?
A: In my opinion, yes, although this is something that the courts are still working out. Courts sometimes draw an artificial distinction between “online” and “the real world,” and hold that harassment has to cross over into the real world before there’s a remedy of any kind. In reality there’s not such a clear distinction between the “cyber” and “real” worlds, especially given that so many of us work and socialize online.
Q: What legal remedies may be available to victims of cyber harassment?
A: Civil remedies may be available under existing tort law or other established causes of action such as libel or copyright — that is, you might recover damages if cyber harassment causes you severe emotional distress, the harasser lies about you or posts material online (such as pictures) to which you own the copyright. In those situations, people can sometimes get money damages for whatever harms the harasser caused. Another civil remedy is what’s known as a civil protection order, more commonly known as a restraining order. Increasingly courts will include in restraining orders that the person who’s being restrained also can’t contact or disparage the victim online.
Criminal remedies can include both fines and jail time, but often prosecutors’ offices won’t pursue them unless the conduct becomes extremely threatening because many offices lack the resources or expertise to do the necessary investigation, particularly the part involving Internet prosecution. The remedies also vary considerably from state to state, which can become complicated if the harasser and the target are in different states.
Q: Can you sue somebody whose identity you don’t know and, through discovery, obtain the identity of the alleged harasser from Facebook or Twitter?
A: The short answer is yes. People have done this successfully on a number of occasions. Moreover, Facebook and Twitter will sometimes proactively turn over the identity of the person if the person has violated the law.
Q: Can any potential change in the law protect citizens from these new forms of harassment?
A: Many people have proposed modifying Section 230 of the Communications Decency Act. Right now that provision shields the owners of blogs for the threatening, harassing or defamatory things that commenters say on their blogs. So the blog owner isn’t legally required to manage comments to make sure they don’t devolve into harassment or threats. If Section 230 were amended, blog owners would have to be more careful. This would require more effort, but I think it would also make the Internet a nicer and safer place.
Matthew Trinidad is a private attorney at Karp Neu Hanlon P.C. He focuses on business law, lending, and estate planning. He can be reached at (970) 945-2261 or at firstname.lastname@example.org.