Saturday, February 5, 2011
Cyber-Bullying New York Court Rejects Online Harassment Claim is an important Sept. 21, 2010 New York Law Journal article (registration required). It is about Finkel v. Dauber —N.Y.S.2d—, No. 012313/09, 2010 WL 2872874 (N.Y. Sup. July 22, 2010) where a New York lower court rejected a cyber-bullying claim and dismissed a defamation action for comments on Facebook. As the article explains:
In Finkel, the court noted that plaintiff had explicitly cast her case as one of cyber-bullying. It held that New York law recognizes no such claim: "[T]he Courts of New York do not recognize cyber or internet bullying as a cognizable tort action. A review of the case law in this jurisdiction has disclosed no case precedent which recognized cyber bullying as a cognizable tort action."
But the court's in-depth contextual analysis is worth examining as an example of what may be missing from some otherwise well-intentioned legislation on cyber-bullying. Striped of context, many of the statements in the Finkel opinion are truly repulsive, demeaning, harassing and appear intended (in the words of the currently pending federal legislation) to "cause substantial emotional distress."
In the absence of a contextual analysis—present in New York's defamation law, but missing from many of the proposed and existing cyber-bullying laws—this kind of communication, familiar to anyone who has ever been in a "flame war," could become a crime.
This is an important topic that is likely to spur more litigation. Law review commentary on this important topic would be most welcomed.
Mitchell H. Rubinstein