CyberBullying and Online Harassment

Bullying generally refers to any aggressive and unwanted behavior that is intended to harm, intimidate, or humiliate the victim. It is often relentless and persistent and can cause severe emotional distress. While traditional bullying behavior has been around forever, cyber bullying is a relatively new phenomenon, having risen with the ubiquity of smartphones, text messaging, email, and social media. Cyberbulling and online intimidation are not limited to school-age children. Workplace bullying has become increasingly prevalent, too. A cyberbully often attacks his victims anonymously, emboldened with the knowledge that retaliation is unlikely due to the lack of a physical confrontation. The anonymity of the Internet instills a sense of invincibility among the bullies, many of whom believe (erroneously) that they can never be identified or stopped. At BerlikLaw, our cyberbullying lawyers know how to track down these cowards and hold them accountable.

One of Virginia's key anti-cyberbullying statutes, Section 18.2-152.7:1, is found in the Virginia Computer Crimes Act. Titled "Harassment by Computer," it provides that, "If any person, with the intent to coerce, intimidate, or harass any person, shall use a computer or computer network to communicate obscene, vulgar, profane, lewd, lascivious, or indecent language, or make any suggestion or proposal of an obscene nature, or threaten any illegal or immoral act," he is guilty of harassment by computer, a crime that may also serve as a basis for a civil action for damages.

To be successful in a civil suit, the victim will generally need to prove (1) that the cyber bully possessed an intent to coerce, intimidate, or harass, and (2) that the bully sent one or more computer messages that (a) contained obscene, vulgar, profane, lewd, lascivious, or indecent language, (b) made a suggestion or proposal of an obscene nature, or (c) threatened an illegal or immoral act. If the electronic communication contains any one of these three categories of harassment, the statute will be violated.

As a practical matter, a communication that is merely profane or vulgar is not going to be enough to constitute cyberbullying, despite what it says in the statute. The Virginia Supreme Court has held that actual obscenity is required if a conviction is sought under the first or second category. Moreover, to be considered obscene, the communication must also violate another statute, Section 18.2-372, which defines obscenity in a manner that complies with the United States Supreme Court's pornography exception to the First Amendment's right of free speech. Under this statute, the word "obscene" means "that which, considered as a whole, has as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse, and which goes substantially beyond customary limits of candor in description or representation of such matters and which, taken as a whole, does not have serious literary, artistic, political or scientific value."

Obscenity is not required, however, under the third category, which applies to "any illegal or immoral act." An illegal act is one that violates the criminal code. An immoral act is one that violates society's social code reflecting its collective sense of moral propriety. Either one of these acts will satisfy the third showing under Section 18.2-152.7:1. If a communication involves threats to commit illegal or immoral acts, whether the communication also happens to be obscene is immaterial.

Cyber bullies come in many forms. Some attack directly, using instant messages, text messages, email, and social media posts. Others take an indirect approach, turning the victim's friends or family against him or her by posing as the victim or using other online deception. Sometimes the harassment will amount to defamation or intentional infliction of emotional distress. Whatever the form of online harassment, we have seen it before and have an excellent track record of stopping cyberbullies in their tracks.