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Combating the Threat of Cyberbullying

Cyberbullying among children is a problem – it’s a problem because it inflicts misery and turmoil on the bullied and an increased lack of empathy in the bully.  Moreover, it threatens not only psychological anguish but also the very real danger of physical injury.  In the United States, suicide ranks second as the leading cause of death among children ages fifteen to eighteen and third for children ages ten to fourteen.[1]  Researchers throughout the world have found that a link exists between bullying and suicide in children.[2]

Unlike traditional bullying, which of course can also be incredibly harmful, the act of cyberbullying includes unique concerns with respect to its persistency, permanence, and ability to escape notice.[3]  It is persistent because digital devices impart information immediately and are able to communicate 24 hours a day;[4]  It possesses the threat of permanency because electronic information can be nearly impossible to remove;[5] and,   because of the methods and times at which it may be authored and disseminated, it is difficult to notice by both parents and teachers,.[6]

The need for and implementation of laws to combat cyberbullying has been recognized throughout the country, including in Texas.  For this reason, on June 9, 2016, Texas Governor Gregg Abbott signed Senate Bill 179 into law, effective September 1, 2017.  The law, known as “David’s Law,” was named after David Molak, a teenager who, in 2016, committed suicide after suffering through two years of relentless cyber-bullying.[7]

David’s Law encompasses a number of aspects including, but not limited to:

  • Amendment of Texas Education Code § 37.0832, to include a single significant act as bullying, rather than a pattern of acts;[8]
  • Inclusion of reporting requirements by school personnel of bullying;[9]
  • Authorization of a student’s removal from a class and placement in a disciplinary alternative or even expulsion under certain circumstances;[10]
  • Ensuring that open-enrollment charter schools are subject to prohibitions, restrictions and requirements applicable to bullying;[11]
  • Coordination between the Texas Education Agency and the Health and Human Services Commission of a website with resources for schools regarding working with students with mental health conditions;[12]
  • Amendment of the Texas Penal Code to include bullying within the definition of an assault and enhancing the penalty for a Class A misdemeanor for various acts of bullying;[13]
  • Implementation of a civil remedy by which a private party can attempt to halt cyberbullying.[14]

As is seen from above list, David’s Law is extensive.  For purposes of this article, only Chapter 129A of the Texas Civil Practice and Remedies Code is examined – the section that provides a bullied person a civil remedy for the bullying.  It is titled Relief for Cyberbullying of a Child (“RCC”).

The RCC provides that a person who is cyberbullied before age 18, can seek injunctive relief against the bully or, if the bully is under 18, the bully’s parental units.[15]  Injunctive relief is a judicial remedy that requires a party to refrain from doing a particular act or activity – here, the act of cyberbullying.  If successful, Texas courts are authorized to issue a temporary restraining order, temporary injunction, or permanent injunction (1) enjoining the defendant from engaging in cyberbullying; or (2) compelling a defendant who is a parental unit to take reasonable actions to cause the child to stop the cyberbullying.[16]

Relief under the RCC is not automatic – the plaintiff must show that they are likely to succeed in establishing that the individual was cyberbullying.[17]  However, unlike other requests for restraining orders and injunctive relief, a plaintiff does not need to show, before notice is served and a hearing is held, that irreparable injury, loss, or damage is likely to result from the bullying.[18]

Importantly, much of the evidence in this type of case is electronic and there exists the threat that a bully might try and erase the same when confronted with his or her wrongdoing.[19]  Accordingly, the RCC allows the court to order the preservation of any electronic communications.[20]

To make the process easier, the RCC instructs the Texas Supreme Court to promulgate forms for use as an application for injunctive relief by individuals representing themselves in cyberbullying suits.[21] Those forms are required to be readily available, will be available in English and Spanish, and must state clearly that the form is no substitute for the advice of an attorney.[22]

There are, of course, further aspects to David’s Law and to the RCC.  Thus, for example, courts throughout the country have dealt with the tension between freedom of speech and cyberbullying (although the legislature accounts for such in its definition of cyberbullying).  Regardless, the implementation of David’s law certainly appears to be a strong step in fighting this type of bullying and in giving individuals the ability to prevent such bullying by civil means.

[1] National Vital Statistics System, National Center for Health Statistics, CDC, at https://www.cdc.gov/injury/wisqars/leadingcauses.html.

[2] See e.g. https://news.yale.edu/2008/07/16/bullying-suicide-link-explored-new-study-researchers-yale.

[3] https://www.stopbullying.gov/cyberbullying/what-is-it/index.html.

[4] Id.

[5] See id.

[6] See id.

[7] More about David’s tragic story as well as the acts of his family, legislators, and others to combat bullying is available at www.davidslegacy.com.

[8] Tex. Educ. Code §37.0832.

[9] Tex. Educ. Code §37.0151.

[10] Tex. Educ. Code §37.0052.

[11] Tex. Educ. Code §12.104(b).

[12] Tex. Educ. Code §21.462.

[13] Tex. Penal Code §§22.01 and 42.07(a)(7).

[14] Tex. Civ. Prac. and Rem. Code §129A.001 et. seq.

[15] Tex. Civ. Prac. & Rem. Code §129A.002(a).

[16] Tex. Civ. Prac. & Rem. Code §129A.002(b).

[17] Tex. Civ. Prac. & Rem. Code §129A.002(c).

[18] Id.

[19] While retrieval of metadata may be possible, it is not guaranteed and may be a highly expensive process.

[20] Texas Civ. Prac. & Rem. Code §129A.002(e).

[21] Tex. Civ. Prac. & Rem. Code §129A.003(a).

[22] Tex. Civ. Prac. & Rem. Code §129A.002(b)-(d).

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