World Medical & Health Policy, Vol. 8, No.

4, 2016

Safer Cyberspace Through Legal Intervention:

A Comparative Review of Cyberbullying Legislation
Y. Tony Yang and Erin Grinshteyn

Cyberbullying is a problem that has increased significantly in incidence and severity over the recent
past. The harmful consequences of cyberbullying have been well documented, including associations
with severe psychological suffering, suicidal ideation, and suicide attempts. Cyberbullying is
characterized by unique circumstances and challenges for those interested in tackling this burden
using legal means. This critical review uses qualitative legal analysis. LexisNexis and PubMed
searches were conducted. It examines laws and policies dealing with cyberbullying in both the
United States and other countries starting with defining cyberbullying and then comparing the
measures in which the issues surrounding cyberbullying have been addressed using various legal
strategies. Finally, after analyzing existing legislative methods around the world, this article
concludes with legal and policy recommendations based on these comparisons.
KEY WORDS: cyberbullying, violence, adolescents, comparative laws

Introduction

The emergence of the Internet has led to an extraordinarily enhanced ability

to communicate. Social media and other online services have given persons of all
ages the ability to disseminate thoughts and communications broadly and
quickly, connecting the world in an unprecedented manner. This technological
advancement is not without its drawbacks, however. One negative trend that has
emerged alongside the ubiquity of the Internet is an increase in cyberbullying.
Cyberbullying is bullying that takes place over electronic means of communi-
cation (Hinduja & Patchin, 2010). This includes communications over an
increasing number of devices including cell phones, tablets, and computers.
Within these devices, applications and websites that support social media,
whether through posting text, pictures, or videos, have also become tools of
cyberbullies. In light of the increasing number of hours teens spend on the
computer plugged into social media and the increasing access the proliferation of
smart devices has created, this trend deserves heightened attention as more and
more households in the United States access the Internet every year (File, 2013).

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Published by Wiley Periodicals, Inc., 350 Main Street, Malden, MA 02148, USA, and 9600 Garsington Road, Oxford, OX4 2DQ.
Yang/Grinshteyn: Safer Cyberspace Through Laws 459

As greater numbers of people access the Internet and text on smartphones and
wireless devices (U.S. Census Bureau, 2012), the danger for cyberbullying
expands. These increased online avenues have already been brought to light in
many high profile incidents in the media in recent years (NoBullying.com, 2016);
yet, the dangers may go well beyond what has been reported. A 2014 study
indicated that the prevalence of bullying was 55 percent with 18 percent of high-
school respondents reporting cyberbullying (Gan et al., 2014). As cyberbullying is
becoming more widespread, most victims do not share their cyberbullying
experience, and if they did, only half believe they are taken seriously (Gan et al.,
2014). Cyberbullying deserves attention due to its potentially devastating effects
on victims (Gan et al., 2014). In light of recent data and the propensity for
adolescent teens between the ages of 12–18 to be involved, this article seeks to
shed some light on relevant policies addressing cyberbullying among this age
group, with the hope that the discussion can assist legislative bodies pursuing
action and crafting measures to ensure the safety of these children.
To this end, this article will begin by laying out some of the background
considerations and obstacles for legislatures seeking to define cyberbullying. It
will then discuss the empirical and anecdotal data to determine the boundaries of
the current problem of cyberbullying to which legislatures are responding. Next,
it will review the laws currently in place, both in the United States and abroad, to
see the various approaches possible to control cyberbullying. Finally, it will
identify key considerations in light of this review and seek to identify a model
policy and key policy considerations for the United States. This article uses
qualitative legal analysis; LexisNexis and PubMed searches were conducted to
review and compare cyberbullying legislation and regulation both within the
United States and abroad. In order to inform policy, it also draws recommenda-
tions regarding cyberbullying laws, setting forth principles derived from its
broader legislative comparisons upon which policymakers may base future anti-
cyberbullying efforts.

Addressing the Root of the Problem

Cyberbullying demands increased attention not only for the physical danger
it poses to teens, but also the significant psychological issues and behavioral
issues associated with it (Schneider, O’Donnell, Stueve, & Coulter, 2012).
Cyberbullying has drawn national attention in light of prominent incidents of
related teen suicide (Gini & Espelage, 2014). While these instances show the
extremes of the dangers cyberbullying poses for its victims, the emotional and
behavioral disorders associated with it may be equally damaging for both
members of the cyberbullying dynamic (Rose, Simpson, & Moss, 2015). Cyberbul-
lying not only may cause psychological harm to its victims, it also may serve as a
symptom of the same behavioral and emotional disorders experienced by
cyberbullies themselves (Schneider et al., 2012). Both victims and bullies
experience a lack of safety at school; some of them come from broken homes, and
have difficulty getting along with others (Schneider et al., 2012). Therefore,
460 World Medical & Health Policy, 8:4

measures to address the problem should consider operating with the understand-
ing in mind that cyberbullies and their victims are both more likely to report a
host of physical and mental problems in order to effectively craft responsive
legislation (Bottino, Bottino, Regina, Correia, & Ribeiro, 2015; Sourander et al.,
2010).

Defining the Problem

The first step in addressing the problem of cyberbullying is to come to some

consensus on how to define the behavior at issue. Although there is no
universally accepted definition, for the purposes of a starting point, cyberbullying
can be broadly defined as intentional harm caused repeatedly by one person to
another by way of computers, cell phones, or other online devices (Blackwood,
2012). Many researchers define cyberbullying as an online form of traditional
bullying; for instance, “aggressive behavior that is repeatedly and intentionally
carried out against a defenseless victim using electronic forms of contact” (Sticca
& Perren, 2013). However, cyberbullying may pose greater dangers than
traditional bullying because of the ability for cyberbullies to reach across great
distances to impact their victims. It is because of this difference that many
traditional bullying laws and measures fail to address cyberbullying at all, calling
for renewed legislative action to bring this behavior under the purview of
enforcement.
Because of the failure of traditional bullying laws to define bullying behavior
in a way to capture behavior like cyberbullying, the challenge inherent in all
attempts to define “cyberbullying” is the necessity to choose either an overly
broad definition with imprecise terms that offers a flexible one-time legislative fix
with the risk that ambiguity will result in marginal cases of cyberbullying going
unpunished; or a narrow, precise definition that excludes a great deal of
potentially dangerous behavior and that would necessitate legislative updating to
remain effective with the balancing gain of providing clearer guidance for
enforcement. For example, a narrow definition that is specific to certain kinds of
devices may find itself obsolete after the launch of a new product not yet
envisioned. On the other hand, an overly broad definition of behavior could bring
every angry e-mail or Facebook post between two friends who are fighting into
the enforcement umbrella of the law. Each avenue has its pitfalls and perils that
must be dealt with. Behind these considerations is a weighing of false positives
and false negatives. The question really is which poses the greater danger to
teens: punishing mean behavior that may not be criminal, bringing more teens
into the criminal justice system, or letting kids suffer the effects of bullying and
having to deal with the emotional and behavioral disorders that ensue?
Although states have been active in passing legislation, coming to terms with
the definition of cyberbullying needs to be an essential component for consider-
ation when crafting legislation. Practically speaking, it seems unrealistic given the
speed of technological advancement to use a definition that further taxes
legislative attention. At the same time, too broad a definition provides little
Yang/Grinshteyn: Safer Cyberspace Through Laws 461

guidance to courts and law enforcement, which risks a higher likelihood of over
deterrence leading to the prosecution of kids just behaving badly. While an
exhaustive discussion on the topic is beyond the scope of this article, examining
the various approaches different governments have taken on the issue hopefully
does provide some guidance on where to start drawing the line for legislatures
faced with crafting effective definitions.

A Clear and Present Danger

Problems with defining cyberbullying lead to problems with measurement in

cyberbullying studies. While there is no agreement as to what constitutes
cyberbullying exactly, by all accounts, cyberbullying has been proliferating.
Research into the prevalence of cyberbullying in 2000, 2005, and 2010 found
statistically significant increases in online harassment among those aged 10–17
from 6 percent in 2000, to 9 percent in 2005, and then to 11 percent in 2010 (Jones,
Mitchell, & Finkelhor, 2012). In addition, the U.S. Department of Education
released analyses using the School Crime Supplement (SCS) to the National
Crime Victimization Survey (NCVS) for both 2009 and 2011 (the most recent year
available) weighted to represent over 24 million students in each year aged 12
through 18 years. These found that 6 percent of students reported being
cyberbullied in 2009, while 9 percent reported being cyberbullied in 2011. This
represents a significant increase in just two years, during which the prevalence of
all other types of bullying remained static between 2009 (28 percent) and 2011
(27.8 percent) (National Center for Education Statistics [NCES, 2011]). While there
are a variety of estimates in published literature reporting the numbers of school-
aged children who have experienced cyberbullying (some showing up to one half
of preteens and one third of teenagers in the United States), the nationally
representative survey from the NCVS estimates that almost 2.2 million children
were cyberbullied in the 2010–11 school year (up from 1.5 million two years
prior) (Feinberg & Robey, 2008; NCES, 2011).
And, just as with traditional bullying, cyberbullying victimization and
perpetration are not mutually exclusive. A recent study of middle and high
school students in the United States found that just over a quarter of all students
had been a cyberbully and victim within the previous three months (Mishna,
Khoury-Kassabrib, Gadallaa, & Daciuka, 2012). In fact, the vast majority of
cyberbullies were also victims, with less than a quarter of all cyberbullies
reporting that they only played the role of bully (Mishna et al., 2012).
Recent events have clearly demonstrated that cyberbullying poses a unique
public health threat, particularly with respect to adolescent students. Victims of
cyberbullying have exhibited decreased academic achievement, poorer family
relationships, various psychosocial difficulties, and other serious problems
(Nansel et al., 2001; Sticca & Perren, 2013). Rates of depression are higher among
those cyberbullied than among perpetrators or bully-victims (Wang, Nansel, &
Iannotti, 2011). This pattern has not always been evident in traditional forms of
bullying, where depression is more consistent between victims and bullies (Wang
462 World Medical & Health Policy, 8:4

et al., 2011). Despite a lack of causal research in this area, there is strong evidence
that cyberbullying is a significant correlate in a number of suicides and homicides
(Gini & Espelage, 2014; Williams & Godfrey, 2011).

Why Cyberbullying Is Not Just Bullying

There are a number of factors unique to cyberbullying that render it perhaps

more insidious than traditional forms of bullying. First, the cyberbully can attack
with anonymity, without witnessing the consequences of his/her actions
(Blackwood, 2012). Under this cloak, “kids seem to be much braver and are
willing to send or forward mean messages” (D’Antona, Kevorkian, & Russom,
2010). While data have shown that often perpetrators of cyberbullying also
participate in traditional bullying (Olweus, 2012), in some cases, it may be that
the bullies are simply enabled to say things they may not have said face-to-face
due to the anonymity (Patchin & Hinduja, 2006). One study in the United States
found an 88 percent overlap between those who cyberbully and those who bully
face-to-face, which means that 12 percent of cyberbullies are not otherwise
bullying outside of electronic media (Olweus, 2012). Focus groups with American
adolescents showed that the anonymity of cyberspace allowed adolescents to
bully in this way due to a lower risk of getting caught (Kowalski, Limber, &
Agatston, 2008). That is, this anonymity creates an environment for some
perpetrators to participate in cyberbullying who would not have participated in
face-to-face bullying (Tokunaga, 2010).
Second, the cyberbully uses the Internet to expand his/her audience and
leave behind permanent digital content attacking his/her victim (Kowalski et al.,
2008). Now, damaging information can be spread to great numbers of peers,
easily and quickly, who can then expand upon such content in further damaging
ways (D’Antona et al., 2010). Research has shown that cyberbullying that leaves
permanent digital content, such as photos or videos, is more damaging than other
forms of bullying (Smith et al., 2008).
Finally, parents and school officials often lack technical ability to enforce
punishments to prevent cyberbullying (Smith et al., 2008). Unlike traditional
bullying, which often takes place in schools or on neighborhood streets,
cyberbullying has the ability to effectively “follow the victim home,” which often
makes it more difficult to monitor and even more pernicious. What is more, the
Internet itself poses jurisdictional questions for enforcement against such actions
when the cyberbully and victim exist across state or international borders
(Johnson & Post, 1996). At present, few jurisdictional questions are settled with
regard to the Internet and the ability of one jurisdiction to apply its law to actors
outside its borders.

Warnings Spur Need for Greater Research

Proof of the seriousness of the problem abounds with high-profile examples

of cyberbullying. In 2012, a 12-year-old girl in Florida died by suicide after
Yang/Grinshteyn: Safer Cyberspace Through Laws 463

receiving a series of insulting and threatening messages from a classmate via

Facebook (Gutman & Haskell, 2013). Of course, this type of event is not limited to
the United States. In 2014, a 17-year-old boy in the United Kingdom died by
suicide after being blackmailed by cyberbullies who lured him into a video
conversation he thought he was having with a girl in the United States and then
threatened to send compromising photos of him to people he knew (Edmonds,
2014). In 2011, a Canadian teenager died by suicide after lewd photographs of her
were spread online and used to extort from her further content (CBC News,
2013).
The association between cyberbullying and suicide has begun to go beyond
anecdotal and is beginning to find support in research (Gini & Espelage, 2014).
One study of almost 2,000 adolescents in U.S. schools found that not only was
cyberbullying victimization associated with an increase in suicide attempts but
also cyberbullying perpetration (Hinduja & Patchin, 2010). Another study has
found that those who experienced cyberbullying were 2.5 times more likely to
report suicidal ideation, almost three times more likely to report self-injury,
almost three and a half times more likely to report a suicide attempt, and 3.39
times more likely to report a suicide attempt that required medical treatment
(Schneider et al., 2012). While the research does not show a causal association
between cyberbullying and suicidal ideation or attempt, the strong associations in
the cross-sectional literature do indicate a relationship.
This strong perceived link has led to further investigative measures to unfurl
the extent of the relationship between bullying and suicide. The relationship has
been seen to be so strong in fact that the Centers for Disease Control convened a
special panel, and a special edition of the Journal for Adolescent Health was
published focusing specifically on the question (David-Ferdon & Hertz, 2007).
Most likely, this relationship can in part be explained by the commonality of risk
factors associated with those who have suicidal ideations and those who are
victims of cyberbullying. While it is not known how the two are related, it is
known that it is unfounded to say that cyberbullying alone causes suicide. Such
an extreme position, without further data, could lead to over-reactions on the part
of legislatures leading to the consequences associated with over inclusive
measures.

The Legislative Response

In response to these alarming trends and occurrences, governments in the

United States and across the world have begun to address the problem in a
variety of ways. One of the most pervasive measures thus far has been legislative
intervention. Unfortunately, little is known about the effectiveness of such
legislation, as studies focused on their effectiveness are pending (Schneider et al.,
2012). As no U.S. federal law directly addresses bullying, state legislatures and
administrative bodies have largely taken the lead in implementing new bullying
and cyberbullying controls (Stopbullying.gov, 2014). International authorities are
no less concerned about this emerging public health threat, adding to the
464 World Medical & Health Policy, 8:4

variation in approaches. In each of the countries discussed below, the role of

government varies, especially in the part the government plays in education. This
is significant because much of the cyberbullying literature examines school-aged
youth—the focus of this article as well. However, while the roles of the various
governments in education may differ from the United States, the strong cultural
and governmental structure parallels allow for generalizations about these
international laws that can be applicable to the U.S. population and translated for
implementation into the U.S. legal system.

The U.S. Federal Government

In the United States, bullying is addressed primarily at the state level

because by and large states deal with it through criminal statutes. The U.S.
Constitution plays some role to the extent that potentially harmful speech
might be protected under the First Amendment. The federal government also
has an impact insofar as claims regarding bullying invoke federal anti-
discrimination laws. There are potentially a number of laws that could be at
issue depending on the nature of the bullying, one such being whether the
bullying qualifies as harassment. Harassment refers to the bullying of attributes
that are legally protected. So Title VI of the Civil Rights Act (1964) prohibits
harassment based on race, color, national origin; Title IX of the Education
Amendments (1972) prohibits harassment based on sex; and Section 504 of the
Rehabilitation Act (1973) and Title II of the Americans with Disabilities Act
(1990) prohibits disability-based harassment. Additionally, the Office of Civil
Rights and the Office of Special Education and Rehabilitative Services have
issued a series of Dear Colleague Letters (2000, 2010, 2013, 2014) addressing
these civil rights violations.
Although these legislative efforts do not directly identify electronic harass-
ment, it would be an oversight to assume that an individual’s civil rights can only
be violated through face-to-face harassment. However, the limit to enforcement of
the legal actions these laws give rise to is that they only allow for monetary
remedies. In addition, this may be seen as a broadening of judicial authority that
some courts may be uncomfortable with taking on.

State Actions in the United States

By and large, in the United States, it is the states that approach the problem
directly on their own (Stopbullying.gov, 2014). Between 1999 and 2010, legisla-
tures across the nation enacted more than 120 bills aimed at combating bullying
(Stuart-Cassel, Bell, & Springer, 2011). Today, all states and the District of
Columbia have implemented some form of bullying legislation (the Bully-Free
Montana Act was signed into law in April 2015) (Stopbullying.gov, 2014). While
the laws enacted in the states differ widely, 47 of the 49 states with bullying
legislation include electronic harassment as a form of bullying (Stopbullying.gov,
2014). However, just 18 expressly mention cyberbullying, and only 12 proscribe
Yang/Grinshteyn: Safer Cyberspace Through Laws 465

off-campus bullying behaviors (Hinduja & Patchin, 2013). Despite their differ-
ences, several prominent themes exist.
It is important to note at the outset that anti-bullying laws gained traction
prior to the near-universal Internet usage that exists today. As such, many state
anti-bullying laws did not originally include protections against cyberbullying;
thus, cyberbullying protections in many states are simply overlaid on existing
anti-bullying legislation. Because of this, it is important when classifying state
cyberbullying controls to simultaneously discuss the various types of anti-
bullying laws that exist throughout the United States.
That said, state anti-bullying laws address the problem in a few important
ways. First, all states require that schools establish and implement a set of anti-
bullying provisions. In conjunction with this, many laws direct state administra-
tive bodies to create a model anti-bullying operative force as an option for schools
to adopt. Second, some states, besides requiring that schools institute punishment
systems for bullying, expressly criminalize bullying, cyberbullying, or both.
Finally, and most importantly, state laws define terms including “bullying,”
“cyberbullying,” and “harassment,” which proscribe bullying conduct and
establish the parameters for state schools or law enforcement authorities to
enforce anti-bullying laws.
The operative force behind many state anti-bullying laws is the requirement
that schools establish and institute anti-bullying provisions. These state require-
ments vary immensely. Some are quite detailed, setting forth exact requirements
that schools include certain provisions, while others leave more discretion. For
instance, Florida’s anti-bullying legislation directs school districts to “adopt a
policy prohibiting bullying and harassment of any student or employee of a
public K–12 educational institution” (Fla. Stat. § 1006.147). Although the legisla-
ture left the specifics up to the individual school districts, the detailed law
requires that, at minimum, every school implement a statement prohibiting
bullying; a district-wide definition of bullying and harassment; a statement of
behavior expected of students and employees; a list of consequences for
harassment; as well as procedures for reporting harassment, investigating reports,
notifying parents of victims, and many more (Fla. Stat. § 1006.147).
In requiring administrative bodies to promulgate model policies that schools
may adopt, some states require schools to adopt these model policies; others
make them optional (Stopbullying.gov, 2014). In 2011, 41 states had model anti-
bullying policies that were disseminated to school districts (Stuart-Cassel et al.,
2011). Some are lengthy and detailed, while others consist of a brief page of
requirements (Stopbullying.gov, 2014). The U.S. Department of Education has
also set forth a suggested framework of 13 key provisions to be addressed in state
anti-bullying model policies: purpose, scope, prohibited behavior, enumerated
groups, reporting, investigations, written records, consequences, mental health,
communications, training/prevention, transparency/monitoring, and legal reme-
dies (Stopbullying.gov, 2014).
It is a less frequently exercised option that states expressly criminalize
bullying, an avenue that might require further focus and action by legislatures in
466 World Medical & Health Policy, 8:4

the future. Currently, approximately 10 states criminalize bullying, including

Arkansas, Idaho, Kentucky, Louisiana, and Massachusetts (Stopbullying.gov,
2014). The Massachusetts anti-bullying law provides in part that “whoever
willfully engages in a pattern of conduct or series of acts over a period of time
directed at a specific person, which seriously alarms that person and would
cause a reasonable person to suffer substantial emotional distress, shall be guilty
of the crime of criminal bullying” (Stopbullying.gov, 2014). Researchers acknowl-
edge that criminalization of bullying has advantages and drawbacks, but it seems
clear that under certain circumstances, it strengthens state enforcement (Hatzen-
buehler, Schwab-Reese, Ranapurwala, Hertz, & Ramirez, 2015; Waldman, 2012).
Specifically, three elements of anti-bullying legislation were consistently associ-
ated with decreased odds of exposure to both bullying and cyberbullying:
statement of scope, description of prohibited behaviors, and requirements for
school districts to develop and implement local policies (Hatzenbuehler et al.,
2015).
Finally, and most importantly, the true driving force behind anti-bullying and
cyberbullying laws is the manner in which each legislature—or state regulatory
body—defines key terms such as “bullying,” “harassment,” and “cyberbullying.”
These definitions set forth the parameters according to which states act to prevent
and combat bullying and cyberbullying and will determine the scope of
prohibited conduct within that state. Thus, if harassment is too narrowly defined,
certain harmful conduct may escape enforcement altogether. Moreover, this is
where cyberbullying is truly implicated because in order to bring online bullying
within the enforcement powers of school administration or law enforcement
(where previously it may have been unconsidered), it must be included in the
definition of proscribed conduct.

Formulaic Approach to Defining the Problem

In order to reach an appropriate definition, it is important to isolate several

primary elements in anti-bullying law definitions. This can be seen by looking at
a simple “who, what, where” formula.
The “who” defines not only the identity of possible bullies or cyberbullies,
but also the identities of eventual victims. Some states, like Arkansas (Ark. Code
Ann. § 6-18-514), define bullying victims as both students and public school
employees, whereas others, like Alaska, limit them to just students (Alaska Stat.
Ann. § 14.33.250). Also important are the characteristics of the victims. Some
states, like Alabama, define harassment as conduct “reasonably perceived as
being motivated by any characteristic, if the characteristic falls into one of the
categories of personal characteristics contained in the model policy adopted by
the department or by a local board” (Ala. Code § 16-28B-3). Effectively, then, this
type of state law creates a sort of protected class, under which only bullying
directed at students bearing certain characteristics falls within the definition.
Second, the “what” factor looks at exactly what constitutes bullying or
cyberbullying. In many state laws, this question is answered in the definition of
Yang/Grinshteyn: Safer Cyberspace Through Laws 467

“harassment.” Forty-seven states include electronic harassment as a form of

bullying, but just 18 explicitly include cyberbullying (Hinduja & Patchin, 2013).
This is very important for cyberbullying enforcement, since without mention,
online types of bullying might not be proscribed by state law and thus would not
be within the enforcement authority of schools.
A few examples will prove informative. New York defines “harassment” as
“the creation of a hostile environment by conduct or threats, intimidation or
abuse, including cyberbullying” (N.Y. Educ. Law § 11). It further defines the term
with reference to conduct that, among other things: (i) would interfere with a
victim’s educational performance; (ii) would cause a student to fear for his safety;
and (iii) would cause such injury or emotional injury (N.Y. Educ. Law § 11). By
contrast, Wisconsin defines “bullying” as “deliberate or intentional behavior
using words or actions, intended to cause fear, intimidation, or harm” (Evers,
2014). It then goes on to suggest that bullying can be “indirect,” which might
include sending insulting messages or pictures by mobile phone or using the
Internet—also known as cyberbullying (Evers, 2014). Specifically acknowledging
cyberbullying as a unique form of bullying that requires response is important
given its prevalence and impact on twenty-first century schools.
Finally, and most importantly, is the question of “where.” It is often
suggested that the majority of cyberbullying content is produced away from
school grounds (Erb, 2008). As such, state law definitions of bullying can extend
school or law enforcement authority off-campus; indeed, 12 states have already
done so, and 2 more have similar legislation pending (Hinduja & Patchin, 2013).
States that do not extend their definitions to off-campus conduct may be
ineffective against a great deal of cyberbullying, particularly when it is difficult to
prove a specific harm to the school environment. The state law extension of
authority typically looks like the following: “‘Harassment’ and ‘bullying’ shall
mean the creation of a hostile environment by conduct or by threats, intimidation
or abuse, including cyberbullying, that . . . occurs off school property and creates or
would foreseeably create a risk of substantial disruption within the school environment,
where it is foreseeable that the conduct, threats, intimidation or abuse might reach school
property” (N.Y. Educ. Law § 11). Barring First Amendment violations, this
language allows school authorities to punish students whose speech, though
created off-campus, might foreseeably find its way to school authorities. Indeed,
the U.S. Court of Appeals for the Second Circuit endorsed this theory in 2008
(Doninger v. Niehoff, 2008).
However, it is important to remember that federal and constitutional law in
this area is far from settled. U.S. Supreme Court precedent on freedom of
expression in schools hardly touches upon bullying, and when it has, it has
eschewed any mention of off-campus cyberbullying. However, existing precedent
does provide that almost any harmful student conduct engaged in on-campus, on
school equipment or property, or at a school-sponsored event can be regulated by
school officials because such conduct has the clear potential to “materially and
substantially” disrupt school activities (Tinker v. Des Moines Independent
Community School District, 1969). The Third, Fourth, and Ninth Circuits have
468 World Medical & Health Policy, 8:4

extended this “materially and substantially” standard to cases that could be

classified as cyberbullying with varying results (Wynar v. Douglas School District,
2013). Based on the way these circuits have engaged with the Supreme Court’s
“materially and substantially” standard, it appears that schools have the ability to
enforce cyberbullying provided the school can show the proper nexus between
the perpetration and the harm to the school environment (Wynar v. Douglas
School District, 2013). Understandably, federal courts are leery of extending
school authority over student speech originating off-campus. While a few federal
courts have taken the liberty of extending school authority to off-campus speech,
even in light of the First Amendment, some scholars suggest that this issue will
remain unresolved until the Supreme Court establishes some legitimate First
Amendment precedent on the question (Blackwood, 2012).

International Approaches

To better inform this discussion, it is important to also discuss legislative

interventions for cyberbullying in international jurisdictions. Cyberbullying is by
no means endemic to the United States. In Canada, research indicates that
approximately 25 percent of children and teenagers from 11 to 19 years old have
been threatened via computer or cell phone (Shariff & Hoff, 2010). Additionally,
over 50 percent of Polish teenagers and 34 percent of English and Belgian
adolescents have faced cyberbullying in some form (European Law Monitor,
2014). One study of second-, third-, and fourth-grade children in Turkey found
that 27 percent had been victimized through cyberbullying (Arslan, Savaser,
Hallett, & Balci, 2012) while another study of high school students in Central
China found that over half had been cyberbullied (Zhou et al., 2013). Indeed, the
issue has drawn similar attention in Europe as it has in the United States—the
European Commission itself is approaching the problem by way of its “Safer
Internet Campaign, which is essentially a public awareness campaign for
teenagers, providing advice and strategies to mitigate the harms of cyberbullying”
(Zhou et al., 2013). The Commission went so far as to propose that popular
Internet companies sign an agreement to work toward a set of principles to
protect Internet-using children, a pledge signed by companies as venerable as
Facebook, Google, and Microsoft Europe (Zhou et al., 2013).
But what specific legislative fixes have been proposed abroad to combat
cyberbullying? We will briefly consider laws in the United Kingdom, Canada,
Australia, Sweden, the Philippines, and South Korea. The first three were selected
because they are culturally similar to the United States and have faced significant
bullying-related difficulties in recent years. Sweden is an example of a nation that
recently addressed the problem head-on; moreover, Sweden has very “hardline”
bullying protections (Hetzler, 2014; Rooke, 2014). South Korea and the Philippines
recently addressed cyberbullying through legislation and it is helpful to examine
how non-Western countries address this issue to see if different social and
cultural factors influence perceptions of cyberbullying and legislative approaches
(Li, 2008).
Yang/Grinshteyn: Safer Cyberspace Through Laws 469

The United Kingdom

First, the United Kingdom has already implemented some limited bullying
protections. All schools in the United Kingdom are required to implement anti-
bullying policies under the School Standards and Framework Act of 1998 or other
legislation (Teach Today, 2014). Cyberbullying is not, however, specifically
defined in the country, but some ancillary British laws may provide some
protection (Teach Today, 2014). For instance, under the Telecoms Act of 1984, it is
illegal to make anonymous or abusive telephone calls or to repeatedly harass a
victim over the telephone. Another law, the Communications Act of 2003,
criminalizes sending grossly offensive content over a public electronic communi-
cations network (Teach Today, 2014). By and large, however, no effective,
comprehensive cyberbullying legislation exists (Hope, 2013). This is a major
shortcoming with respect to the U.K.’s anti-bullying regime; indeed, there is no
definition for cyberbullying or “cyber stalking” (NoBullying.com, 2014a). While
the United Kingdom has lagged in combating cyberbullying relative to a number
of other developed nations, perhaps more troublesome is that, there are real
issues in policing online offences when they are committed by those in other
countries (in other words, victims are protected if their “attacker” is in the United
Kingdom, but unprotected if not) (NoBullying.com, 2014a).

Canada

Bullying has perhaps never been as prominent an issue in Canada as it is

today (NoBullying.com, 2014c). A high-profile young suicide helped spur into
action a brand new cyberbullying bill, introduced on November 20, 2013. The
legislation focuses not on schools—as with the vast majority of U.S. anti-
cyberbullying legislation—but rather, on particular types of online conduct. For
instance, the legislation would, among other things, “prohibit the non-consensual
distribution of intimate images,” “empower a court to order the removal of
intimate images from the Internet,” and “permit the court to order forfeiture of
the computer, cell phone, or other device used in the offense” (Canada
Department of Justice, 2013). The Justice Department of Canada also supports the
creation of school-centered programs to prevent bullying (Canada Department of
Justice, 2013). Interestingly, Canadian legislation addressed harmful conduct
first—the sending of lewd pictures, as in the high-profile Canadian suicide
above—rather than focusing on the primary location of most young people’s
interactions—the school.
By focusing on identifying what constitutes cyberbullying behavior in the
larger sphere, Canada’s approach allows it to provide clear guidance in the
present to judges and law enforcement to better ensure against over-deterrence,
while also leaving flexibility for future legislative action that does not require
redundant action—redefining or categorizing what cyberbullying is—but rather
allows for amendment that can easily incorporate and overlay the legislative
structure already established. As new behaviors emerge via new means of using
470 World Medical & Health Policy, 8:4

technology to harm others, they can be added to those categorized under the law
as illegal. Focusing on identifying dangerous or illicit behavior also allows
Canada to avoid worrying about the legislatively taxing job of pinning down
exactly what cyberbullying means in a broader sense. Instead, the force of
Canada’s law proceeds by providing examples of actions for judges and law
enforcement to look for. It is also worth noting that while cyberbullying is
certainly a predominantly youth driven behavior, Canada took legislative action
geared toward the general public rather than pigeonholing the enforcement
potential of its law. This allows for application against college as well as high-
school age persons.

Australia

On the other hand, Australia is another nation in which sweeping bullying

protections have not yet been comprehensively enacted, despite a slew of high-
profile young suicides (NoBullying.com, 2014b). Like in the United States,
Australia’s federalist system means that individual jurisdictions within the
nation tend to approach bullying on their own (NoBullying.com, 2014b). As such,
“[t]here isn’t a national anti-bullying statute and no definitive nationally accepted
legal definition of what constitutes bullying” (NoBullying.com, 2014b). As of
now, New South Wales is the sole jurisdiction in Australia that expressly
incorporates cyberbullying into its Crimes Act (University of Technology Sydney
[UTS, 2014]). In that state, the Crimes Act Section 60E makes it illegal to “assault,
stalk, harass, or intimidate any school staff or student while attending school”
(UTS, 2014). As with many laws in the United States, this does not encompass
cyberbullying that takes place outside the schoolyard gates, rendering it fairly
ineffective as one study showed that schools had not widely implemented the
recommended practices, teachers appeared to need more training to address
bullying, and bullying prevalence was relatively unchanged (Caslon Analytics,
2014; Cross et al., 2011; Eastley, 2013).
Current laws in Australia that could be used for cyberbullying are patently
inadequate, and prominent legal scholars in Australia have argued for a specific
new national law criminalizing cyberbullying (Eastley, 2013). Indeed, like in the
United States, the national government provides for causes of action under
discrimination law, workplace safety law, industrial relations law, common law,
and general criminal law, without any specific legislation aimed at bullying or
cyberbullying (Caslon Analytics, 2014). Australia’s Communications Law Center
recommends that popular social networking sites be drafted in the fight against
cyberbullying using substantial outreach (Caslon Analytics, 2014).

Sweden

Sweden, too, has experienced a number of suicides associated with online

bullying (Beckman, 2013). In response to the problem, in 2013, Stockholm
established the Friends International Center Against Bullying, which will host
Yang/Grinshteyn: Safer Cyberspace Through Laws 471

international bullying conferences and deliver advice to schools in Sweden on

the issue of bullying (United Press International [UPI, 2013]). In 2006, Sweden
passed the Child and Student Safety Act, which was subsequently repealed and
largely replaced by the Discrimination Act and a new chapter of the Education
Act (Friends, 2013). The Discrimination Act—which also applies to students—
prohibits discrimination based on sex, gender identity, ethnicity, religion,
disability, age, or sexual orientation (Friends, 2013). Schools are partially tasked
to prevent such discrimination. The Education Act, on the other hand, contains
anti-bullying provisions (Friends, 2013). This law prohibits “degrading treat-
ment” (e.g., bullying and harassment)—even that which does not rise to the
level of discrimination (Friends, 2013). As in many states within the United
States, schools are responsible for actively preventing such behavior. Many
Swedish schools have a well-developed “whole school approach” to combat
bullying (Skolverket, 2011). This means that all the staff and pupils know how
to act when bullying and degrading treatment occurs: Everyone is involved and
the approach adopted is supported by pupils and staff (Skolverket, 2011).
Finally, bullying in Sweden is not expressly criminalized, but as with most
bullying behavior, sufficient harm can rise to the level of criminal conduct
(Friends, 2013).

The Philippines

The Republic of the Philippines passed the Anti-Bullying Act in 2013

(Republic Act No. 10627, § 3(a) (1)), which explicitly defines bullying as “severe
or repeated use by one or more students of a written, verbal, or electronic
expression,” and directs all elementary and secondary schools to enact policies
that prohibit many forms of bullying including cyberbullying. In addition to any
punitive actions, the school is also required to provide rehabilitation to the bully,
encouraging the bully’s parents to also attend. Beyond procedures for reporting
bullying, investigating reports, and protecting students in need, it also protects
the bully from retaliation, and provides counseling for bullies, victims, and family
members. The Anti-Bullying Act addresses cyberbullying much more explicitly
than many other countries’ legislation because it was written specifically to tackle
the issue.

South Korea

South Korea has focused on regulating the websites where bullying takes
place in an effort to identify the often anonymous bullies. In 2007, South Korea
passed the “Internet Real-Name System” law that required websites with more
than 100,000 visitors a day to require users to verify their identity before posting
comments (Sang-Hun, 2012). Currently, this approach would likely require the
United States to amend the Communications Decency Act before similar
legislation could be passed here (Sang-Hun, 2012). The Act grants immunity for
actions against intermediaries based on content provided by third parties.
472 World Medical & Health Policy, 8:4

South Korea’s legislation was enacted largely in response to high-profile

suicides that were also victims of cyberbullying. South Korea has the highest
suicide rate of all Organisation for Economic Cooperation and Development
(OECD, 2011) countries. However, South Korea is somewhat unique in that
there is a higher than usual suicide rate among celebrities (Fu & Chan, 2013),
with some of their suicides also associated with cyberbullying (Veale, 2008).
These issues combined with the extremely high Internet usage in South Korea
(over 84 percent of the country used the Internet in 2012, in contrast to 81
percent in the United States) (The World Bank, 2014) created a need for
legislation addressing cyberbullying. Nevertheless, the law was ruled unconsti-
tutional in 2012 after considerable criticism that it violated free speech (Sang-
Hun, 2012).

Findings and Model Policy

Cyberbullying is still a relatively new issue and future empirical studies

should continue strengthening the evidence based on the effectiveness of various
laws and policies in reducing cyberbullying as digital communication evolves.
However, this close look at U.S. and international (although limited to six
countries) legislative approaches to cyberbullying can allow us to draw a few
recommendations. Pursuant to this, we have isolated several aspects of state laws
in the United States, as well as approaches implemented abroad that should be
considered important for effective legislative intervention for this serious and
growing public health problem. If this legislative prescription is followed,
jurisdictions will be more capable of protecting their most vulnerable citizens—
children—from the nefarious effects of cyberbullying. While further evaluation of
existing state laws is required, the following proposed laws and policies address
the most pressing problems in cyberbullying enforcement.
To begin, state legislators should require that schools implement cyberbully-
ing-specific protections for students. Pursuant to this, lawmakers should instruct
state administrative bodies to create a model policy for mandatory adoption by
schools that largely conforms to the 13 key components set forth by the
Department of Education. In addition, the policy must establish procedures for
reporting, information dissemination, investigating incidents, disciplinary action,
counseling, and restrictions on accessing social networking services while in
school (Jones et al., 2012). It is also imperative to review and update cyberbullying
laws within schools, particularly in light of technological advancements. Schools
are an effective mechanism for enforcement because their firsthand knowledge of
the effects of cyberbullying gives them good insight into what constitutes
behavior that crosses the line into criminal action, and their extra-judicial position
helps to guard against the negative effects of landing undeserving children in the
system that overdeterrence risks.
When defining “bullying,” lawmakers and administrators should ensure that
definitions expressly include “cyberbullying” or else risk allowing a great deal of
harmful conduct to fall outside the express prohibitions. This is imperative for the
Yang/Grinshteyn: Safer Cyberspace Through Laws 473

construction of effective cyberbullying laws to promote enforcement because

when bullying definitions expressly include cyberbullying, cyberbullies—even
off-campus ones—cannot escape school authority (New York State Dignity for All
Students Act, 2013). Presently, a great deal of the cyberbullying behavior takes
place off-school grounds, leaving school administrative authority to reach these
problems ambiguous at times. Therefore, lawmakers must extend school author-
ity over cyberbullying that originates off-campus to make it effective. For
example, off-campus speech can be regulated in New York so long as it “creates
or would foreseeably create a risk of substantial disruption within the school
environment, where it is foreseeable that the conduct, threats, intimidation, or
abuse might reach school property” (N.Y. Educ. Law § 11). As of yet, New York’s
construction does not appear to fall afoul of First Amendment protections making
it a noteworthy model. Furthermore, legislatures should consider following
Canada’s model providing a framework of identifiable cyberbullying behavior
that can more easily be enforced at the present, with the flexibility of amendment
for future legislative action should the need arise.
The present state of cyberbullying policy is to either overlay on bullying
legislation, or craft specific legislation that risks becoming outdated or
criminalizes behavior that is most prevalent among teens. The dangers each of
these poses must be at the forefront of a legislature’s mind when determining
how to strike the right balance between inclusion and exclusion of proscribed
behavior. While criminalization is a strong enforcement mechanism, it is
currently not the preferred method by most states for addressing the problem.
Criminalization does provide an important enforcement attribute in that it
leaves decisions to a judge and the local justice system. While bullying has
grown nationally, local understanding and cultural perception of the problem
could play an important role in enforcement and how to best address the issue.
This is evident from state legislatures’ decision to use schools as a vehicle for
addressing the problem, particularly in light of the fact that it is teens that the
problem is most impacting.

Conclusion

In order to create effective enforcement, legislatures need to address both

the devices used and the technology platforms utilized to perform cyberbully-
ing acts. Individual jurisdictions should imitate Canada’s proposed legislation
allowing judges to order the removal of offending content shared online and
seize online devices used to disseminate such content. Currently, this would
require successful navigation of both the First Amendment and the Communi-
cations Decency Act. These efforts could be largely effectuated by the federal
government engaging with social media and other online companies in order to
help secure stakeholder buy-in. Second, governments should attempt to follow
the example of the European Commission with Facebook, Microsoft, and
Google, encouraging like companies to sign a pledge to set forth policies to
combat bullying on their respective platforms. Enlisting the help of these
474 World Medical & Health Policy, 8:4

companies could go some way toward disrupting what has become among the
primary means of cyberbullying.

Y. Tony Yang is an associate professor in the Department of Health Administra-

tion and Policy, College of Health and Human Services, George Mason
University.
Erin Grinshteyn is an assistant professor in the Department of Population Health
Sciences, School of Nursing & Health Professions, at the University of San
Francisco.

Notes

Conflicts of interest: None declared.

Corresponding author: Y. Tony Yang, ytyang@gmu.edu

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