Is It Illegal to Participate in Cyberbullying?

While previous generations may have observed or been subjected to domineering torment by others, the word “bully” today encompasses much more than a mental image of Biff from Back to the Future or John Bender from The Breakfast Club. Bullies no longer resemble their cinematic portrayals, and it is now much more difficult to withdraw from an environment in which bullying occurs. Current technology and our growing social media presence make the bullying dynamic much harder to contain and much harder to ignore. Today’s online environment is a place where bullying has instant, widespread, and permanent effects and where bullies can attack their victims 24-hours-a-day.

In an effort to address this growing problem, Tennessee has taken a zero-tolerance stance and has implemented various laws addressing cyberbullying. Tennessee law defines cyberbullying as “bullying undertaken through the use of electronic devices.” It includes cell phones, computers, email, text messaging, and web sites. (Tenn. Code Ann. § 49-6-4502). In general, the policy behind laws against teen bullying and cyberbullying is the same – to protect young people from the scarring effects of being targeted by their peers for cruel treatment. However, several features unique to electronic media make cyberbullying potentially more harmful:

• Uncontained. Once a rumor, insult, threat, or image is sent or posted, it is potentially viewable by anyone with access to the Internet.
• Permanent. Data that enters the cyber media stream never really goes away, even if it is “deleted.”
• Immediate. A message can be sent or posted 24/7 and is instantaneously “published” to virtually anyone with access to the Internet, and
• Often anonymous. Because it’s easy to hide behind a fake persona, it’s difficult to identify and confront bullies or take action compelling them to stop.

Tennessee has taken two approaches to punishing cyberbullying:

1. Harassment

It is a misdemeanor in Tennessee for any person to transmit or send messages that “knowingly annoy or alarm” the recipient of the message. (Tenn. Code Ann. § 39-17-308.) A person engaging in such conduct is guilty of criminal harassment. And, anyone who posts or transmits an image to another person is guilty of harassment, if

• the person posting or transmitting maliciously intends to be perceived by the victim as a threat, and
• a reasonable person viewing the image would perceive it as a threat. (Tenn. Code Ann. § 39-17-308.)

So, sending an annoying or alarming text message, for example, is a form of harassment under Tennessee law.

A person convicted of harassment may face a jail sentence of up to eleven (11) months and twenty-nine (29) days, a fine not to exceed $2,500, or both. (Tenn. Code Ann. § 40-35-111).

1. Stalking

In Tennessee, when an individual makes repeated contact with another person without that person’s consent, including contact through electronic communications or via the internet, they may be engaging in criminal stalking. (Tenn. Code Ann. § 39-17-315).

If the victim was under the age of 18 and the stalker was five or more years older than the victim, the stalker may be convicted of a Class E felony (Tenn. Code Ann. § 39-17-315), punishable by a prison sentence of not less than one year and not more than six years, a fine not to exceed $3,000, or both. (Tenn. Code Ann. § 40-35-111).

In addition, Tennessee has required that all public school districts adopt and enact anti-cyberbullying policies. (Tenn. Code Ann. §§ 49-6-4503, 49-6-4505). The policies must

• define cyberbullying, harassment, intimidation, and bullying
• prohibit cyberbullying, harassment, intimidation, and bullying of students
• state the consequences to anyone who engages in prohibited conduct
• set forth the reporting procedure to be used by anyone experiencing or witnessing prohibited conduct, including anonymous reporting
• prohibit retaliation against anyone who reports prohibited conduct, and
• describe the investigation that the district will conduct following reports.

(Tenn. Code Ann. § 49-6-4503.)

While children must learn how to interact with others and deal with difficult situations, they do not have to tolerate being bullied or harassed. While Tennessee’s progress in this area of law is commendable, cyberbullying laws do not go without critics. Civil rights activists essentially view such laws as criminalizing speech protected by the First Amendment. Such Constitutional concern means there will likely be many court decisions and statutory amendments in this area of the law that will refine the scope.