A look at updated legislation and recent court cases dealing with social networking, cyberbullying and freedom of speech. Will also look at what this might imply for students and teachers.

1. Social networks and cyberbullying: implications for students and teachers Ryan MacDougall ED6931 – Memorial University June 28th, 2011

2. Purpose The purpose of this presentation is to examine legislation and some legal cases involving cyberbullying and freedom of speech via social networks.

3. Overview Legal Cases: D.C, a minor et al. v. R.R, a minor et al. (California) Finkel v. Facebook (New York) United States v. Lori Drew (Missouri)

4. Why Cyberbullying is a Challenge

5. Adopted Legislation Tinker Standard: schools may not silent student speech/opinion because they dislike it. They must reasonably forecast that a) a substantial disruption of the school environment would occur and/or b) that the rights of others would be invaded. This standard, adopted by the Supreme Court, arose from the case of 15 year old John Tinker who, along with his sister and a friend wore black armbands to their Iowa schools to protest the Vietnam War. It was ruled that “students and teachers do not shed their right to freedom of speech and expression at the schoolhouse gate”.

6. Adopted Legislation United States: Washington S.1706 reads:8 (5) By August 1, 2008, each school district shall amend its harassment, intimidation, and bullying prevention policy to include a section addressing acts of bullying, harassment, or intimidation that are conducted via electronic means by a student while on school grounds and during the school day. The existing Oregon Revised Statute addressing harassment, intimidation, and bullying reads: 339.351 Definitions for ORS 339.351 to 339.364. As used in ORS 339.351 to 339.364, “harassment, intimidation or bullying” means any act that substantially interferes with a student’s educational benefits, opportunities or performance, that takes place on or immediately adjacent to school grounds, at any schoolsponsored activity, on school-provided transportation or at any official school bus stop, and that has the effect of: …

7. Adopted Legislation Canada: In 2007, Ontario adopted a policy where cyberbullying was added to a list of offences in which a student could be suspended or expelled from school, known as part of the Safe Schools Act Premier Dalton McGuinty said at the time that "bullying is bullying..whether you do it online by way of the latest technology or you're doing it in person or over the old fashioned telephone, it still causes pain and suffering."

8. Court Cases Involving Cyberbullying Case #1: A 15 year old student in California, known as D.C, creates a website to promote his aspiring career as a performer Fellow students at his school post various derogatory messages on his website Police rule that this does not fall under hate crimes but free speech; no investigation will take place D.C’s father files a lawsuit against those involved; one of the defendant parents files a motion that remarks were “jocular” in nature – judge dismisses the motion Case goes to California appeals court; lower court’s decision is upheld – it was clear that these derogatory remarks were not intended as free speech Hate crimes and defamation charges may now proceed

9. Court Cases Involving Cyberbullying In this case, the debate was based upon whether the statements made on the website were actually derogatory or whether they constituted free speech under the first amendment. The authorities originally refused to launch an investigation as they believed this to be free speech. However, when a civil suit was finally launched, the judge deemed this to be a case of hate crimes and defamation.

10. Court Cases Involving Cyberbullying Case #2 – Finkel v. Facebook: Teenager Denise Finkel sued classmates, their parents along with Facebook for defamation after the classmates created a Facebook group and posted derogatory messages about her. The case alleges that the students should be held liable for defamation, the parents held liable for failure to adequately supervise their children and Facebook held liable for failure to verify the genuineness of the postings. Facebook filed a motion to dismiss – motion was granted due to Facebook’s immunity under section 230 of the CDA. state judge dismissed the remaining claims, writing that, "Taken together, the statements can only be read as puerile attempts by adolescents to outdo each other"

11. Court Cases Involving Cyberbullying In the Finkel case, the primary issue was that the prosecution felt that Facebook should have gotten involved to restrict these individuals from posting statements that the company should have known were not true. While the students and their parents were also named as defendents, it appeared that the lawsuit was primarily aimed at Facebook. Interestingly enough, the entire case was dismissed. Based on the evidence, the comments made did not seem as harsh as those made in the first case.

12. Court Cases Involving Cyberbullying Case #3 – United States v. Lori Drew Drew, a Missouri woman, had a daughter that was friends with 13 year old Megan Meiers. Meiers eventually transferred schools and decided she did not want to be friends with Drew’s daughter. Drew became suspicious that Meiers may be spreading rumors about her daughter. Drew decided to create a fake MySpace profile of a 16 year old boy to find out what Meiers was saying about her daughter. Meiers and the fake profile begin a flirtatious relationship. Eventually, Drew, using the fake profile, tells Meiers that the world would be better off without her. Meiers’ mother entered her room later on to find out the girl had committed suicide. Drew was convicted of a misdemeanor under the Computer Fraud and Access Act. This conviction was later set aside on the grounds that the conviction does not align with the CFAA. Missouri updated their legislation to cover cyberbullying.

13. Court Cases Involving Cyberbullying Case #3 continued…: The updated version of the law removes the requirement for illegal harassment to be either written or over the telephone. These changes make the law applicable to harassment from computers, text messages, and other electronic devices A federal Megan MeiersCyberbullyingPrevention Act was also introduced. The purpose of this bill was to set a federal standard definition for the term cyberbullying. According to Rep. Linda Sanchez, the behaviour must be repeated and hostile to fall under the definition. If the bill is passed, it would officially criminalize online behaviour intended to coerce or intimidate.

14. Court Cases Involving Cyberbullying This is a really interesting case simply for the fact that the individual doing the “cyberbullying” is actually an adult. This is a scenerio where an individual used the computer in a fraudulent manner but due to an apparent “loophole”, could not be charged under the CFAA.

15. Cyberbullying: Curriculum Connections How can cyberbullying connect to curriculum and what we teach? Cyberbullying: A Prevention Curriculum for Grades 6-12 – Scope and Sequence by the Hazelden Foundation. Causes and effects of cyberbullying How to create a positive cyber site (rather than a negative one) Materials for parents (get them involved!)

16. Implications for Students and Teachers While students must maintain their right to freedom of speech, they can be held accountable for what they say online, on or off campus. As in the case of A.B v. State of Indiana, teachers may be the subject of what appears to be derogatory flaming, but may constitute students exercising their freedom of speech (according to constitutions). Should teachers accept this treatment just because they are public figures? This is a question that will be widely debated in the coming years.

17. Conclusion In conclusion, important to point out that situations discussed in this presentation may not be dealt with the same in all jurisdictions. Mann’s (2008) article regarding social networking and cyberbullying points out a few important conclusions. A study was conducted by Lacey on how cyberbullying could be stopped. An important response included “parental involvement” being a key factor. Parents need to supervise their children with much more scrutiny while they are on the internet. Education is also key. Students and their parents must be aware of the risks associated with social networking sites – not only with cyberbullying but with divulging personal information, reading privacy policies, etc.

18. References A.B v. State of Indiana, 2007, ICA. http://online.mun.ca/d2l/lms/content/viewer/view.d2l?tId=762092&ou=80741 “Bullying”. http://en.wikipedia.org/wiki/Bullying City News. “Cyber-Bullying Law Introduced to Ontario”. Published April 16th, 2007. Accessed June 25th, 2011. http://www.citytv.com/toronto/citynews/life/family/article/16010--cyber-bullying-law-introduced-in-ontario Finkelv. Facebook, 2009, SCNY. http://www.citmedialaw.org/threats/finkel-v-facebook http://www.citmedialaw.org/section-230 The Hazelden Foundation. “Cyber-Bullying: A Prevention Curriculum for Grades 3-5 and 6-12”. Accessed June 22nd, 2011. http://www.hazelden.org/web/go/cyberbullying Herring, S. C. (2002). Cyber violence: Recognizing and resisting abuse in online environments. Asian Women, 14, 187-212. Hoff, D, & Shariff, S (2007).”Cyberbullying: Clarifying Legal Boundaries for School Supervision in Cyberspace”, accessed June 25th, 2011. http://www.cybercrimejournal.com/shaheenhoff.pdf. Li, Q. (2005). Cyber bullying in schools: The nature extent of adolescents’ experience. Paper presented at the American Education Research Association (AERA) Conference in Montreal, Quebec, Canada, April, 2005. Mann, B.L. (2009). Social networking websites: A concatenation of impersonation, denigration, sexual and aggressive solicitation, cyber-bullying and happy slapping videos. International Journal of Law & Information Technology, 17(3), 252-267.

19. References “Social Networking”. http://en.wikipedia.org/wiki/Social_Networking “Tinker Standard”. http://www.firstamendmentschools.org/freedoms/faq.aspx?id=12991&printer-friendly=y Willard, Nancy (2007). “Cyberbullying Legislation and School Policies: Where are the Boundaries of the ‘School-House Gate’ in the New Virtual World?”. June 25th, 2011. http://www.cyberbully.org/cyberbully/docs/cblegislation.pdf Wikipedia. “United States v. Lori Drew. Updated June 20th, 2011. Accessed June 25th, 2011. http://en.wikipedia.org/wiki/United_States_v._Lori_Drew Zetter, K (2010). “Court: Cyberbullying Threats are not Protected Speech” in Wired. March 18th, 2010. Accessed June 25th, 2011. < http://www.wired.com/threatlevel/2010/03/cyberbullying-not-protected/>