Cyberbullying Laws: Legal Solutions for Victims of Cyber Abuse

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Cyberbullying Laws & Legal Solutions

While cyberbullying laws are presently very few and far between, legal solutions do exist for victims of cyber abuse— including cyberbullying, cyber harassment, and cyberstalking.

Understanding Cyberbullying

Cyber abuse in its various forms, which includes cyberbullying, cyber harassment, and cyberstalking, is increasingly recognized as a significant public health concern.

To understand what cyber abuse is and what it can look like, you should focus on what is being done and how it is being done.  All forms of cyber abuse involve two main components:

(1) a type of behavior, the conduct and (2) a means of communication, the tool.

The Conduct.

The first element for identifying cyber abuse is recognizing the type of conduct that is involved.  This is, essentially, bullying.

The conduct may consist of threats, harassment (i.e., conduct that is repeated over time), or other actions taken to embarrass or humiliate the victim.  Cyber abuse may also involve nonconsensual image-sharing (i.e., ‘revenge porn’).

Cyberbullying involves conduct directed toward a person or persons for the purpose of causing harm.

The Tool.

The second component of cyberbullying involves the tool used: Technology.

The type of technology a perpetrator may use can vary from case to case.

A perpetrator may utilize the Internet or a cell phone.  The perpetrator may post images or information on social media, send text messages or emails, or utilize other forms of technological communication.  The perpetrator may combine any of these.

The options are limited only by the perpetrator’s imagination.

Cyberbullying vs. ‘Traditional’ Bullying

It is important to note that the distinction between cyberbullying and so-called ‘traditional’ bullying is not merely a technical or inconsequential one.

In some ways, yes, it is true that cyber abuse is old-fashioned bullying and abuse just transposed to a new kind of media.

But there are implications to a perpetrator’s use of technology as the chosen tool for abuse that makes the bullying even more harmful—and the resulting damage potentially far more severe.

Features of Cyberbullying

The use of technology enables a perpetrator to inflict greater harm on a victim—and to do so with much less effort.

The potential for greater harm from online abuse flows directly from several factors related to use of technology as a communication device.  These factors include:

  • Anonymity: Through use of technology, the perpetrator is able to interact, communicate, or publish anonymously.
  • Audience: Using technology enables the perpetrator to reach a far greater audience—which means the ability to embarrass or humiliate the victim is exponentially multiplied.  And a larger audience can result in the creation of a mob mentality in which, like a snowball rolling downhill, the abuse can take on a life of its own as more and more perpetrators get involved.
  • Avoidance: Through use of technology, a perpetrator may remain insulated from having to personally confront or interact with a victim—or avoid witnessing the victim’s true suffering that results from the perpetrator’s actions.
  • Access: As a result of the relative ease of communicating through technology and the ability to communicate 24 hours a day means that a perpetrator’s conduct faces virtually no external restraints.  As a result, a victim may experience abuse that feels unrelenting.

Cyberbullying Methods

Some methods commonly employed by perpetrators of online abuse include:

  • Flaming. Engaging in aggressive exchanges with angry and vulgar language.
  • Harassment. Repeatedly sending nasty, mean, and insulting messages.
  • Denigration. Gossiping or spreading rumors about a victim to damage his/her reputation or relationships.
  • Impersonation. Pretending to be someone else while sending or posting material to create trouble or danger for the victim, or to damage his/her reputation or relationships.
  • Outing. Sharing a victim’s secrets or embarrassing information or images online.
  • Trickery. Convincing a victim into revealing secrets or embarrassing information, and then sharing it with others.
  • Exclusion. Engaging in conduct with the aim of intentionally excluding a victim from groups or social activities.
  • Cyberstalking. Placing a victim under surveillance, or causing them to feel that they are being watched, followed, monitored, or surveilled.  It typically involves repeated, intense harassment and denigration that includes threats or creates significant fear.

Cyberbullying Victims

Cyber abuse victims span all ages and demographics.

The term ‘cyberbullying’ is typically used when the person experiencing the online abuse or aggression is a minor or relatively young.  When the victim is an adult, the behavior may be referred to as ‘cyber harassment’

That being said, anyone can be a victim.

There are, however, certain risk factors that may increase the likelihood that a person may experience online bullying or harassment.

In the U.S., the likelihood of being a victim of cyberbullying or cyber harassment are increased by:

  • young age
  • female gender
  • LGBTQ
  • a visible disability or impairment.

Why is Cyber Abuse a Problem?

When they first learn of cyber abuse, many people’s initial reaction is to dismiss it as a non-problem.

Why does it matter?’ They may say.

Or they might suggest that the problem can easily be solved if the victim just ‘logged-off’—i.e., no longer interacts with others online.

But, logging-off is hardly a solution.

In fact, to simply opt-out from engaging in online interactions is virtually (excuse the pun) impossible.

Quite simply, in this day and age, permanently logging-off is impossible.  Online interactions are interwoven into every aspect of our modern lives.  And this reality is even more pronounced among teens and youth.

But, more importantly, logging off—even if it were possible—does nothing to solve the problem for several reasons.

First, cyberbullying and cyber harassment are not limited to online interactions.  As discussed above, any form of technology may be used as a tool for cyber abuse.

Second, even if the cyber abuse at issue is, for a particular victim, only occurring online, the damage created continues to exist regardless of whether the victim interacts online.  In other words, given that cyber bullying and harassment may center on matters published online that are witnessed by others, logging off would only solve the problem if everyone else in the world were to log off too.  Obviously, that will not happen.

Cyberbullying is a problem that follows its victims.

Harmful Effects

We should all care about cyber abuse because the problem is pervasive, it is often severe and, importantly, the effects can be highly damaging.

In fact, the effects may be even more severe than so-called traditional bullying.

Cyberbullying and cyber harassment victims often face increased absenteeism, anxiety, depression, poorer grades in school, damage to physical health and well-being, self-esteem, sleeping issues, social anxiety, and more.

And most frightening of all, too many victims—believing that there is no other way to escape—may ultimately resort to suicide.

Cyber abuse can be an urgent and devastating problem.

Cyberbullying Laws & Legal Solutions

There are few cyberbullying laws presently on the books in the United States. But several laws and principles exist that may be leveraged to combat cyberbullying, cyber harassment, and cyberstalking.

Identify the Perpetrator.

I always tell my clients that the first key in any cyber abuse case is to definitively ascertain the identity of the perpetrator.

In many cases, the victim often has a good idea who the perpetrator or cyberbully may be.

But to invoke cyberbullying laws that may offer protection against online abuse, a simple hunch is not enough.  Instead, to move forward with legal remedies, you will need to establish or confirm the culprit’s identity with proof.

If the evidence in your possession is not enough to identify the perpetrator, you should consider hiring an expert with experience in conducting cybersecurity-related investigations.

1. Criminal Laws.

Several states have enacted criminal cyberbullying laws; explicitly prohibiting behavior that can properly called cyber abuse.

Georgia, for instance, makes it a crime to harass, molest, threaten, or intimidate anyone through electronic communication or by phone.  Several other states have similar laws.

A victim may seek enforcement of these criminal laws by reporting the abuse to local law enforcement authorities.

2. Education Laws.

When dealing with cyber abuse arising in or around school, a legal avenue to explore is whether any education-centered cyberbullying laws apply.

In Georgia, for instance, public education laws specifically prohibit bullying that involves:

use of data or software that is accessed through a computer, computer system, computer net­work, or other electronic technology of a local school system.

O.C.G.A. § 20-2-751.4

A student that violates this or other education-centered cyberbullying laws may face stiff penalties—including removal from the school and assignment to an alternative school.

3. Workplace Laws.

Depending on the substance of the harassing communications, the victim may be able to rely on employment-related laws to combat cyber harassment.

For example, Title VII of the Civil Rights Act of 1964 (a federal anti-discrimination law) prohibits conduct that is severe or pervasive enough to interfere with a person’s employment, if the harassment is because of race, gender, national origin, religion, or disability.

If the victim is being harassed because of one of those protected traits, and the perpetrator is a co-worker of the victim or the victim suffers employment-related adverse actions due to the harassment, an employer may have a duty to step in and take steps to stop the harassment or redress the negative employment-related effects of the harassment.  If the employer fails to either, as appropriate, it may be held liable.

4. Restraining Orders.

Most states authorize a victim to obtain a restraining order or a protective order to guard a victim from threatening, intimidating, or harassing communications.

Georgia, for example, authorizes courts to issue a restraining order when a perpetrator engages in conduct such as placing a person under surveillance or engaging in contact with a person “for the purpose of harassing and intimidating” the victim.

Importantly, this law expressly defines contact to include electronic communications:

the term ‘contact’ shall mean any communication including without being limited to communication in person, by telephone, by mail, by broadcast, by computer, by computer network, or by any other electronic device.

O.C.G.A. §16-5-90.

While restraining order statutes like these are useful precisely because of the broad definition of that key word contact—the same word also reveals a clue as to a limitation on the usefulness of restraining orders in cyberbullying cases: contact.  In many cases, cyber abuse includes indirect harmful communications; the negative communications swirl about and center on the victim, but the perpetrator does not directly contact the victim.  In these cases, obtaining a restraining order may be challenging, even if the perpetrator is known and identified.

Depending on the case and through careful case preparation, this problem can be avoided—and the victim may successfully secure a restraining order even though the perpetrator avoided direct contact with the victim.

5. Civil Lawsuits.

In addition to proceeding under cyberbullying laws, online abuse may also form the basis of a successful civil lawsuit.

A civil case stemming from online harassment or other forms of cyber abuse may proceed under traditional theories of liability, such as intentional torts or negligence.

For instance, a known and identified perpetrator may be directly and personally liable for intentional torts they commit.  For example, a cyberbully may be sued for libel/defamation or intentional infliction of emotional distress.

Entities not directly engaging in acts of cyber abuse may also be held liable in civil lawsuits.  Cases against these third-parties proceed under traditional theories of liability and negligence.  For example, a social media platform or other online publisher may be liable for failing to prevent foreseeable injuries to a victim or for the company’s failure to intervene when it knew or should have known that harm would result.

Hire an Experienced Lawyer

If you are a victim of cyber abuse, cyberbullying laws exist that may apply to your case and legal solutions are available.

Contact a lawyer who is experienced in cyberbullying laws and cyber abuse cases—including cyberbullying, cyber harassment, and cyberstalking.  An experienced attorney can help you navigate the issue and pursue legal remedies that may be available to you.  It is important to get help as early as possible.

Most importantly, remember: Help is available.

You can recover from this.

Contact Blain LLC

 


Read more about cyberbullying and online aggression:

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Thank you NAACP of Georgia

I was honored to have been given the opportunity to speak with the Georgia NAACP this past Saturday morning about the problem of sexual assault.

It was an emotional event for me, but as this Sexual Assault Awareness Month draws to a close, I could not be happier to be involved in this conversation.

It is a conversation we must continue to have as we repeatedly remind ourselves that 1 out of every 6 girls will, on her journey through this life, find herself the victim of a rape or an attempted rape…

1 out of every 6 girls.

Thank you to Dr. Francys Johnson (President, Georgia NAACP) and Dr. Meca Williams-Johnson for inviting me to participate.  I am forever indebted to you.

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Blain LLC files lawsuit for severe burns to inmate caused by collapse of Rubbermaid Commercial Products Brute container

Our firm has filed a lawsuit for severe burns sustained by a 26 year-old man, which resulted in surgical skin grafts to both feet.

The case arose during his incarceration at USP Atlanta and involves an established practice of food service workers filling containers with kettle-heated water to wash and soak dishes.  The plaintiff, who worked in the kitchen, alleges that while he was standing nearby, a filled container collapsed, releasing scalding hot water onto his feet.

The lawsuit comes following multiple similar injuries to inmates involving plastic trash containers, which are commonly used in correctional institutions for storing or transporting hot water.

The lawsuit alleges that the global marketer Newell Brands, promoted its garbage containers in a way that encouraged commercial and institutional uses that extend beyond “merely storing trash.”

In particular, the lawsuit claims that Newell Brands promoted the container to correctional institutions as “virtually indestructible,” “one of the most versatile containers on the market,” and “suitable for extreme temperatures” despite knowledge that due to the container’s low-density polyethylene material, it tends to fail under thermal stress.

In a 2014 decision, an inmate at the Wayne Scott Unit in Texas sustained burns when a nearby plastic trash container was filled with hot water and melted.

In another Texas case, an inmate was injured when nearby plastic trash cans filled with hot water by food service workers collapsed.

And two additional cases, both decided in 2006, centered on burns suffered by inmates when containers used for transporting hot water failed.

Atlanta Business Chronicle

 

 

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Service By Publication

Or, How to Serve a Ghost.

Service by publication is the opposite of personal service.

In fact, it is so impersonal, that it does not ever notify the defendant that he has been sued.

And that is okay.

Service by publication is utilized to effectuate service on defendants that have effectively disappeared. 

Defendants that have evaded service, that have fled, that have moved and cannot be found…

The thing to remember about serving somebody by publication is that it is not real; it is merely an illusion. 

And since it is only a figment of your imagination, it cannot be used to secure a real judgment against a real person.

But, while imaginary service cannot uphold a real-life judgment against a real live person, it can be used to generate an imaginary judgment that you can then take to your UM carrier to request payment.

Service by publication only has value (in the auto accident litigation context) if the plaintiff intends to proceed against the UM carrier.

If the plaintiff intends to proceed against the defendant (personally) or against the defendant’s liability carrier, then the plaintiff must secure a real judgment.

Which means personal service of process.

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The process for recovering for personal injuries and damages under UM insurance

When the defendant does not have insurance, or does not have enough insurance to fully pay for the plaintiff’s personal injuries and damages, then the plaintiff’s own insurance company supplies the cool, crisp, icy glass of water on what is otherwise just a hot, dry, dusty day.

Let’s hear it for UM coverage.

Hunting for UM coverage

While UM (or Uninsured Motorist) coverage may not rain down from the sky like lemondrops, it does originate in more places than the obvious.

First, obviously, there is the obvious source: the plaintiff’s own insurance policy. Obviously.

But where else? Ahh.. Consider all other vehicle policies of every member of the plaintiff’s household. . Notice I said vehicle policies, not automobile policies.

So motorcycles, ATVs, mopeds(?) …. all of these should be under suspicion.  Round up all the unusual suspects.   Once you’ve identified all of them, ask yourself, are any of the people that these policies belong to “relatives” of the plaintiff?

If so, bravo. These policies potentially contain UM coverage available to the plaintiff. (WOOOHOO!)


 

Add-on vs. Reduced 

Let’s step back and discuss for a minute the types of UM coverage.  This won’t take long.

Before January 2009 there was only one kind of UM coverage. But it was silly.  So, in 2009 it changed.  When it changed, most people’s UM insurance became a better kind.  Unless they wanted to stick with the original silly kind. Which they could.

Add-On UM Insurance 

The better kind.

Assuming the plaintiff took out enough, the better kind of UM coverage fills the space between what the defendant has (whether $0 or more) and what the plaintiff needs (i.e., plaintiff’s damages).

Reduced UM Insurance

Now for the silly kind.

The silly kind of UM coverage essentially replaces the defendant’s insurance. It is only useful if the amount of UM insurance is more than the amount of liability insurance the defendant has. If and only if the plaintiff’s UM insurance limit is greater than the defendant’s available liability insurance, then the plaintiff’s UM carrier will pay that difference.


 

Stacking 

Stacking, a term that often pops up in the UM context, refers to which UM carrier is first up to bat.

Stacking rules govern which carrier must pay first, and which pays last, and which carrier (when a reduction policy is involved) gets to pay less by claiming the credit equal to the amount of available liability insurance.

The plaintiff should just be aware that you can only stack policies – not coverages.  In other words, if it exists in a whole separate policy it qualifies as a separate source of UM funds; a “block,” if you will – a stackable “block” for stacking.

To be sure, even if each separate policy is issued to the same person, they still count.  And, even if the policy is issued to someone other than the plaintiff, but under which the plaintiff qualifies, then it too is a stackable block.

But stacking is really the insurance company’s problem – not the plaintiff’s.

The plaintiff’s only job is to timely and properly serve all UM carriers and the umbrella carrier.  And then to sit back and let them have at it.


 

What is the actual procedure for recovering under UM Insurance?

In UM cases–as in all cases–you must first obtain service on the defendant.  Then you must prove liability, so as to secure a judgment against the defendant.

It is the judgment against the defendant that entitles the plaintiff to payment from the UM carrier.

The rub here is that settlements often occur before a judgment against the defendant is secured.  The key to success in UM cases, then, hinges on steps taken at the outset: proper service on the defendant AND proper notice to the UM carrier.

1. Proper service on the defendant

To recover under the plaintiff’s UM coverage, you must either have, or be in a position to secure a judgment against the right kind of defendant.

To be in a position to secure a judgment against the right kind of defendant:

  • The defendant must be a UM-type defendant;
  • You must effectuate proper service of process on him/her.

Types of UM Defendants

Certain types of defendants implicate UM coverage.  When a defendant is Deadbeat, Disappeared, Deficient, or Doe, warm up your photocopier; you’ll be needing it to send copies of the Complaint to the plaintiff’s UM carrier.

For the first three types of defendants, the plaintiff must effectuate personal service of process.

  • Deadbeat Defendant: No insurance
  • Disappearing Defendant: Whereabouts is unknown
  • Deficient Defendant: Underinsured

How do you know your defendant is underinsured?  Is it in the shimmery glint of his eye? Is it in the way he walks? Is it in the way he talks? Is it all up there right in his air? Is it all up there right in his hair? Is it cuz he’s debonair? Do we even really care? Ahem.

The correct answer is False.

Whether your defendant is underinsured has nothing to do with him.

It has everything to do with the plaintiff.  You see, when it comes to underinsuredness, the defendant’s policy limits are like the question of negligence; underinsuredness in the air, so to speak, is not enough. Asking whether the defendant is under-insured is identical to asking “Does she have enough?

Enough…?” the defendant would tepidly inquire, “Enough for what…?

And that is the question: Enough for what?

The response? “Enough to cover the plaintiff’s damages!

In short, to determine whether the defendant is uninsured, you look to the plaintiff’s damages. If they exceed the defendant’s policy limits, then you, my friend, have a UM case: the defendant is under-insured.

But having an “underinsured” defendant as opposed to a plain ol’ vanilla “uninsured” defendant does not mean much. In fact, it doesn’t really mean anything.  It may be a different flavor, but at the end of the day it’s still UM.

So for the first three types of UM Defendants (Deadbeat, Disappearing, or Deficient), just remember that the manner of service is the same — Keep it personal (i.e., Personal Service of process).

But the Doe defendant is different.

Serving the Doe Defendant

He hit the plaintiff – but he never stopped.  Or, he hit someone else, who in turn hit the plaintiff, and he never stopped. Or, he almost hit someone, who hit the plaintiff (and at least two people saw him, but we’ll get to that another day), and he never stopped.

Either way, he is a Doe defendant.

Service for him is different. It’s not personal. It can’t be. Because John Doe doesn’t exist.

So what do I do?

Easy. You serve the Doe defendant by publication.

Remember, no matter how the defendant is served, in all UM cases, you must send a copy of the pleadings to the UM carrier.

2. Proper service on the UM carrier

Once the defendant is properly served, a UM case differs from a regular (straight liability) case in only one way:

You serve a copy of the complaint on the UM carrier.

That’s it?

That’s it.

On to the next topic then?

Not quite.

Notice that the procedural difference was merely that the UM carrier is served with a copy of the Complaint. You are merely serving the UM carrier with a duplicate of the lawsuit you filed against the defendant(s).

You do not name the insurance company as a defendant.

You do not. You may want to. You just don’t.

Ok. Are we done now?

Almost.

To clarify, the insurance company is not a named defendant at this point.  But it can become one.  If it wants to.

You see, when served with the Complaint, the UM insurance carrier has three choices: 

  1. It can file an Answer in the name of the defendant,

  2. It can file an Answer in its own name, OR

  3. It can sit back and do nothing.

It can do nothing because the UM carrier is not an actual defendant in the case.

It is not.

If, however, the UM carrier goes with Door Number 2, and files an Answer in its own name, now it is open-season.  Power up your word processor, and change the pleadings: You’ve reeled in a UM named-defendant.

From that point on, slap the UM carrier’s name up there in the pleadings and treat the UM carrier just as you would any other defendant.

Alright, we’re done here now, right?

Not quite.

Let’s back-up. I misspoke.  When I said “treat the UM carrier just as you would any other defendant,” what I meant to say was, treat it that way until you can’t anymore.

To clarify, while the UM carrier, by virtue of having answered in its own name, now looks like a regular ol’ defendant, you should remember that looks can be deceiving: The UM carrier is not exactly a regular ol’ defendant.

The UM carrier is a special kind of defendant – the unicorn of defendants, if you will.

You see, the UM carrier can change its mind. 

At any point, the UM carrier may withdraw its Answer and then you’re back to square one: The UM is no longer a named-defendant. Time to shake the White-Out.

What’s going on here is that by filing an answer in its own name, the UM carrier becomes a party and can do everything a party can do; serve discovery, notice depositions, file motions, etc.  But, those rights, for the UM carrier, come at a hefty price.  As we all know, rights entail liabilities.

When the UM becomes a party to the case, *bam* its name appears on the pleadings.  And those pleadings may be viewable by the jury.

And, as we all know, if there’s one thing that can make a jury feel exceptionally comfortable handing down a big verdict, it is the word “insurance.”

So, when the UM carrier is done playing defendant, unlike the rest of us, it has the option of taking its ball and going home. The UM carrier may withdraw its Answer and *poof* the UM carrier’s name vanishes from the pleadings.

Ladies and gentlemen, the UM prestige. It’s like it never even happened.

The main reason why a UM carrier theoretically might not take advantage of this secret trap-door option–and would instead allow itself to remain a party all the way through trial–is if the carrier does not agree that it is on the hook for the plaintiff’s problems in the first place.  In other words, the UM carrier might decide to remain in the case if it disputes that the plaintiff was even covered by UM insurance.  Remaining a named-defendant would allow two questions – the question of coverage AND the question of liability – to both be wrapped-up in one tidy lawsuit.

Oh. Um. Okay – So at what point do you serve the UM carrier?

The minute it starts seeming like the defendant’s liability insurance may not be enough.

OR

As soon as it becomes clear that some unidentified individual caused the accident

OR

Once you realize you cannot personally serve one of your defendants because she has now disappeared.

And, if you’re not quite fully sure, just go ahead and serve the UM carrier with a copy of the complaint.  You really cannot serve them too early.  But you can serve them too late.

So serve them. Then, agree to a dismissal of the UM carrier without prejudice.

Okay, what else?

Nothing.


 

Watch video How to write a great demand letter.

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