The Basics of New York Cyberbullying Laws
The New York State cyberbullying laws outline specific definitions and procedures for dealing with such behavior. For example, these laws define cyberbullying to include and encompass both electronic and non-electronic means of bullying. These laws were primarily enacted to try and curb a devastating youth problem – bullying.
As technology has rapidly increased, so have other issues. One of these issues is cyberbullying . School districts across New York State (and across the nation) have seen some of their students become both victims and perpetrators of cyberbullying. Recognizing this issue, the legislature passed bills aimed at curbing this harmful behavior.
Cyberbullying can quickly spirals out of control and create an unstable and harmful environment for an individual, his or her peers, and for his or her resultant suicide. Bullying, whether in person, or cyber, is devastating – both to the victim, and the perpetrator. Schools are taking notice.
Legal Provisions and Regulations
Section 754 of New York State’s Education Law, enacted by Chapter 481 of the Laws of 2010 and known as the Dignity for All Students Act (Dignity Act) amends existing Education Law to include provisions to prohibit harassment, bullying (within the meaning of the New York State Education Department), or discrimination by students against students on school property or at a school function on the basis of actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender, or sex, or by any other distinguishing characteristic. The Education Law provides protection to students against acts of harassment, bullying, and discrimination by school staff and employees. The Dignity Act supplements existing anti-discrimination and anti-bullying provisions in Education Law such as:
These definitions are common across federal and state laws, but there are some important distinctions. For example, "cyberbullying" has not traditionally been addressed under New York State law, and "electronic harassment" under City law has not expressly included "cyber bullying." Similarly, while anti-bullying laws under Federal law have been limited to public institutions (by virtue of being subject to constitutional and statutory mandates such as Title IX), public and private schools and institutions in New York were not subject to these Federal laws prior to the passage of the Dignity Act.
The Dignity Act defines character education as:
- (1) the instruction of the student in the recognition, understanding, prevention of and response to harassment, bullying and discrimination;
- (2) programs which foster the development of good citizenship and good moral character and which impart values essential to a just and civil society; and
- (3) the training of students in the parenting skills contained in such a parent educational program.
The Dignity Act’s prohibitions will not only apply to school district activities, but to other educational agencies such as: charter schools, boards of cooperative educational services ("BOCES"), nonpublic schools that receive state and city funding, and nonpublic schools that have affiliated religious institutions that received state and city funding.
Penal Code and Cyberbullying
Cyberbullying implications under New York State Penal Code
In New York State, there are potential criminal penalties for those who engage in cyberbullying, but those penalties can vary.
In New York, the matter is considered a criminal offense if it is for the third degree. It is a criminal misdemeanor for a person to electronically disseminate an image of a person or more than one person with the intent that the image is viewed by another and the person or one of the persons being depicted is more than 18 years of age and without that person’s consent.
It is also a criminal offense if it is a violation of a protective order or if the person transmit’s the image for sexual gratification or harassment. The range of penalties for both criminal misdemeanor and crime ranges from community service and restitution to a maximum of five years on a felony level.
The New York Penal Code also provides specific definitions for cyberbullying. When used in this article, the term "email" also includes a text message, instant message or chat room communication. The Penal Code requires that it must be sent intentionally to torment, harass or intimidate another specific person. Harassment is defined as a course of conduct or an act which is intended to cause alarm, intimidation or serious emotional disturbance for no legitimate purpose.
There is another statute, the New York Penal Law 240.30, that directly addresses aggravated harassment in the second degree. This statute makes it illegal for someone to use a computer, cell phone, or other electronic device to communicate with another person in a manner that subjects that person to physical contact, restraint, danger of physical injury or fear of physical injury. This charge is considered a Class A misdemeanor.
There is also a second-degree of aggravated harassment (PL 240.31). This statute is considered a Class E felony. It has a few specific elements:
Anyone who has been accused of crime or misdemeanor should seek the help of a lawyer who can explain the New York laws and help them understand the charges facing them.
Impact on Schools and Educational Institutions
The role of schools in addressing cyberbullying is pivotal to the enforcement of New York State law. New York law recognizes that student safety cannot be achieved without the active participation of schools. As a result, public school districts and charter schools are obligated to create and implement comprehensive harassment prevention policies, educational programs, training, and procedures for handling reports of cyberbullying.
The Dignity for All Students Act (DASA), Chapter 102 of the Laws of 2010, states that all school districts and charter schools must adopt policies prohibiting discrimination, harassment, and bullying of students. The DASA implementing regulations were adopted on June 27, 2012. Every school district and charter school must now adopt a policy that prohibits harassment, bullying, and discrimination at least in the following context:
(a) at a school under the supervision of the school district or charter school;
(b) on school property, including buildings and grounds (including playgrounds), a school bus, and school bus stops;
(c) at a school function.
These policies and procedures must apply to student-to-student, staff-to-staff, and staff-to-student harassment. Every school district and charter school must designate one or more employees as a Dignity Act Coordinator. The duties of the coordinators include investigating any reports of harassment, bullying, or discrimination, training school personnel in the implementation of the policy, and acting as the liaison with parents. In addition, schools must notify each school employee (teachers, administrators, counselors, nurses, cafeteria workers, and custodial personnel), student, and parent/guardian of the policy . Educators are required to receive training on various aspects of the DASA including, bullying awareness, prevention, and crisis intervention. At least once a year, educators must receive instruction regarding methods to prevent and respond to cyberbullying. Every school district should (i) develop character education programs designed to promote a safe and supportive school climate; (ii) offer legislative programs that will exemplify commending, praising and identifying a role model for civility, citizenship, kindness, tolerance, respect and acceptance of others; and (iii) develop parental involvement programs to foster parental and family engagement. If you believe that your child has been bullied or harassed, report the issue to the principal, designee, Dignity Act Coordinator or other person designated by the school district or charter school to receive reports. In case of an emergency situation where there is an immediate threat to the health or safety of a student or staff member, take the emergency measure necessary to ensure their safety. The person who receives the report will immediately begin an appropriate investigation and seek the cooperation of parents and guardians as part of each investigation conducted. The DASA does not limit the rights of parents to pursue criminal or civil action independent of the DASA. Although the DASA provides protection from harassment, bullying and cyberbullying behavior, the DASA does not compel any school district or charter school to expel any student who has been found to have engaged in conduct defined by the DASA. The DASA does not impair the authority of school personnel over their students.
Victim Support and Assistance
The harm done by cyberbullying can be profound and long-lasting and, as a result, various support services and resources are available to those affected. Parents of children who have been affected by cyberbullying often turn to school teachers, counselors and administrators for assistance, but they should also explore the possibility of seeking counseling for their own emotional health and that of their affected child. Community mental health centers can provide parents with necessary emotional support.
Various call hotlines exist for different types of cyberbullying. The National Child Abuse Hotline, provided by the Childhelp organization, offers support, information, and resources for child abuse and bullying victims. The National Suicide Prevention Lifeline can provide support for those feeling overwhelmed and on the verge of suicide due to cyberbullying, while the National Domestic Violence Hotline provides support for those affected by acts of domestic violence and harassment who may need protection from a cyberbully.
Victims of cyberbullying may also decide to speak with an attorney who specializes in this area of law. While most people associate a cyberbully with a harmless prank on social media, victims of serious harassment deserve the opportunity to pursue legal action against their attacker. Injured parties are likely to possess the legal standing to pursue lawsuits against their attackers, provided they have identified the source of the harassment or bullying. (Lawsuits against anonymous attackers or anonymous poster may present more challenges.)
Suing a bully in small claims court provides victims with the opportunity to seek limited, simple monetary damages for issues like slander, libel, intentional infliction of emotional distress, or private nuisance. Victims may also seek protective orders against bullies for more serious cases involving email hacking or invasions of private computer networks, and for stalking.
When cyberbullying occurs on public property, including public schools, victims may also pursue a number of judicial remedies. Schools that fail to take reasonable measures to prevent and respond to bullying or cyberbullying may be open to civil liability.
Victims of cyberbullying may also file complaints with institutions like the Federal Communications Commission or state public utility commissions, as well as the Federal Trade Commission, who may investigate complaints and provide remedies to affected individuals.
Emergence and Development of Cyberbullying Laws
The evolution of cyberbullying laws in New York State has largely mirrored the advancements and exponential growth of technology. It is worth noting that while cyberbullying is not defined in the New York Statute, descriptions are provided in two other legislative sections: the Dignity for All Students Act and the Penal Code. This paradox likely stems from technology outpacing legislation.
For example, the Dignity for All Students Act came into effect in 2012. The law aimed to reduce harassment and bullying in public schools, focusing on students grades kindergarten through 12th grade. At the same time, the Penal Code was revised to make it a crime if an adult is convicted of online impersonation with an intent to harass.
Efforts are still underway to strengthen the existing laws on both fronts. In 2018, the Dignity for All Students Act was revised to change the definition of bullying to include the non-consensual dissemination of sexual explicit material, known by the day’s youth as "revenge porn." Such changes show that the legislature intends to not only keep up with technology, but to also ideate on future legislation. However, the bill is not without its critics.
In November of 2019, Congressman Adam Schiff tried to pass a bill, otherwise known as the DEBRA Act (Stands for "Disconnecting from the Online Reporting of Nonconsensual and Human Trafficking Sexual Images Act."), which would impose a felony charge for those convicted of intentionally using a third-party online account to impersonate someone else with an intent to harm, intimidate or harass that person. The bill failed due to a lack of bipartisan support, however Schiff plans to re-introduce the bill in the new year.
The DEBRA act is arguably forward-thinking legislation that , if passed, would criminalize the act of impersonation (without consent) in all forms, regardless of the technological medium. However, until that time, legal ambiguity exists and the laws on the book in New York State do not clearly set the standard for the prosecution of cyberbullying. The law, as it exists today, is primarily enforced in educational settings, but with no real recourse in other spaces.
It can be expected that technology will continue to drive legislative change in the area of cyberbullying. Connecticut, Michigan, and other states with more narrowly defined laws, have passed similar bills that make it a crime to impersonate someone without consent, including a civil penalty of $5,000 for the first offense. If recent conversations are laid to the test and new legislation is hammered out, New York State may soon come in line with other states and enact a more narrowly defined criminal statute to address this issue.
Until such time, technology will no doubt play a role in shaping legislation, especially as the Internet of Things (IoT) continues to expand beyond computers and smartphones into real-world situations. Currently a cyberbully would have to access the personal information of his/her target and subsequently impersonate them on a third-party social media platform (think of technology such as Twitter, Facebook, Instagram and Snapchat). However, in the not-too-distant future a cyberbully may impersonate his target through a smart watch, home hub, or other emerging technologies that have not yet been classified for legal purposes.
However, until such time, the existing laws in place remain somewhat effective, albeit confusing.