Cyberbullying has been an epidemic for years. But like so many computer-age crimes, the law has been slow to catch up with the problem. Criminals who use computers to destroy the lives of young people often escape criminal and civil liability due to victims’ fears of speaking out, police inaction, and myths such as “we can’t control what a kid does at home” or “no one really got hurt”, or “kids will be kids” or, even worse, “your kid shouldn’t be so sensitive about what his friends say about him”.
Civil lawsuits against teenage cyberbullies (and their parents) have been attempted for years, but with only mixed results. The cases are difficult to bring. For starters, the perpetrators are often unknown, meaning that the victim’s lawyer must spend time and money simply learning who to sue. In many cases there are multiple perpetrators, most with hidden identities that must be discovered.
Online harassment suits usually start with the victim asking the judge to enter a restraining order against the involved parties. The court’s order might, for instance, prohibit further social media posting by the perpetrators, as well as shutting down further contact with or harassment of the victim.
Once the court has entered orders limiting the harmful online activities, the cases move toward trial, in which the victim seeks money damages from the bullies. Victims usually make claims of negligence, libel, defamation, intentional infliction of emotional distress and other similar causes of action. Damages sought include mental anguish, pain/suffering, harm to reputation and punitive damages.
There are huge hurdles the victim must overcome to actually win money from the perpetrators. The most obvious is the fact that the typical teenager, hiding behind a computer screen, has little or no money to satisfy a judgment. Insurance coverage is generally unavailable for intentional acts such as cyberbullying. So the lawsuits are typically a dry hole, unless the lawyer can establish that someone else, such as a school or a parent, is somehow responsible for the bully’s actions. Many such lawsuits have ended with large jury verdicts against the defendant, not a dime of which the victim ever recovered.
Further, the Texas Legislature has set up many defenses perpetrators can use to limit their liability. For instance, they can claim that although their posts may have been “mean”, they were still protected speech under the Constitution. In multi-defendant cases, each actor may try to minimize his own liability by pointing to another as being a ringleader. This makes it difficult for the victim to pin down those most responsible. Lastly, the Legislature has passed laws severely limiting the recoverability of punitive damages.
Still, many victims and their lawyers have stayed the course and obtained large settlements and judgments, usually against parents or school districts claimed to have been responsible for student’s actions.
But cyberbullying horror stories continue, and have hit closer and closer to home. Tragedies in Texas City and San Antonio seemed to have helped moved the needle enough for the Legislature to take action.
Somehow managing to work its way through the 2017 year’s legislative (“Bathroom Law”) session is “David’s Law”. The bill is named after David Molak, a 16 year old Eagle Scout from San Antonio who committed suicide after months of online abuse.
The proposed law would make cyberbullying a class A misdemeanor, punishable by up to one year in jail, and/or fine up to $4,000. The law would also impose broad requirements on schools to report on and intervene in cyberbullying cases. It would give schools the power/responsibility to punish violators, including expulsion.
The law would also greatly level the playing field in civil lawsuits against perpetrators, and the parents of young people who commit the crimes. Defendants found to have violated the statute would be financially responsible for all physical and emotional injuries caused by their actions, including mental anguish. Punitive damages, court costs and attorneys’ fees would also be recoverable from the violator.
The law also puts parents of young cyberbullies squarely within the crosshairs, by making them financially responsible if they have the duty of control and discipline over the child. In that case, the parent will be on the hook for the lesser of (1) the damages found by the jury to have been suffered by the victim or (2) $50,000, in addition to attorneys’ fees.
You can read the entire Senate version here. It seems to have broad based bipartisan support in Austin, though it does have critics.
The bottom line? If the law passes in its current form, parents need to take it deadly seriously. Young lives are being lost, and the days of easily avoiding financial responsibility for this sickening conduct may be coming to an end.