Monday, April 7, 2014
Elizabeth M. Jaffe's roundup of the caselaw and literature on cyberbullying, From the School Yard to Cyberspace: A Review of Bullying Liability, is now available on westlaw at 40 Rutgers Computer & Tech. L.J. 17 (2014). Her introduction summarizes the article as follows:
There has been a lot of change--both good and bad--over the course of scholarship focusing on bullying and cyberbullying. With the growing use of technology, bullies have moved from in-person encounters in the classroom or the schoolyard to chatrooms, walls, pages, and the like in the cyberworld. Despite the increased awareness and media coverage, bullying remains a growing problem in today's society. To that end, there are current voids in the law that need to be revised in order to protect the countless and growing number of victims. Simply put, the law has not gone far enough.
Through my research and involvement with this area of scholarship, there are few things that are clear. The First Amendment protects speech and ideas in the traditional sense but fails to adequately adapt to the changing online landscape. Traditional tort principles of liability have not played out yet to holding a bully liable for his actions, and the notion of holding the webhost liable has not taken hold to the extent that may be necessary. As such, we are left with the dilemma of where the legal landscape needs to proceed. Specifically, some type of duty is needed for bullying liability. But to whom should this duty apply? Accordingly, the purpose of this Article is to synthesize my scholarship to date focusing on the issue of bullying and cyberbullying in the context of primary and secondary education and propose resolutions to the cyberbullying epidemic by reviewing the appropriate instances and individuals to whom a duty should be imposed.