In last week's Law Journal, our firm contributed an article defining the new law on cyber-harassment. In this edition, let's discuss another escalating problem that is similar to cyber-harassment—cyber-bullying.

Cyber-bullying is defined as communications or postings by minor(s) on social or digital media or using cyber-technology to threaten, hurt, embarrass, intimidate or target another minor. Bullies use a variety of electronic devices to bully minors such as cell phones, email, text messages, social networking sites or websites. Bullying involves an imbalance of power and/or strength.

Victims of cyber-bullying can be bullied online at any time, day or night. Internet postings can be viewed by a vast audience and may be difficult to remove. (See https://www.stopbullying.gov/cyberbullying/what-is-it/index.html.) The effects of being cyber-bullied could include depression, low self-esteem, anxiety, isolation, suicidal thoughts or suicide. (See https://www.meganmeierfoundation.org/cyberbullying.html.)

The New Jersey Legislature adopted the Anti-Bullying Bill of Rights Act (N.J.S.A. §18A:37-13.2). Section 31 of L. 2010, c. 122 provides: “This act shall take effect in the first school year following enactment, but the Commissioner of Education may take such anticipatory administrative action in advance thereof as shall be necessary for the implementation of this act.” Chapter 122, L. 2010, was approved on Jan. 5, 2011.

N.J.S.A. §18A:37-15 provides for the adoption by each school district of a policy concerning harassment, intimidating or bullying, which states in pertinent part:

a. Each school district shall adopt a policy prohibiting harassment, intimidation or bullying on school property, at a school-sponsored function or on a school bus. The school district shall adopt the policy through a process that includes representation of parents or guardians, school employees, volunteers, students, administrators, and community representatives.

N.J.S.A. §18A:37-15.1 requires electronic communication to be included in school districts' harassment and bullying prevention policies. This section states in pertinent part:

b. In the event that a school district's policy on prohibiting harassment, intimidation or bullying adopted pursuant to section 3 of P.L.2002, c.83 (C.18A:37-15) does not accord with the provisions of subsection a. of this section by the 90th day following the effective date of this act, the district's existing policy prohibiting harassment, intimidation or bullying shall be deemed to include an “electronic communication” as defined in section 2 of P.L.2002, c.83 (C.18A:37-14) as amended by section 1 of P.L.2007, c.129.

Electronics under the statute includes a telephone, cellular phone, computer, pager or the internet. (See N.J.S.A. §18A:37-14.) Cyber-bullying is defined within the statute that includes the following:

“Harassment, intimidation or bullying” means any gesture, any written, verbal or physical act, or any electronic communication, whether it be a single incident or a series of incidents, that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability, or by any other distinguishing characteristic, that takes place on school property, at any school-sponsored function, on a school bus, or off school grounds … that substantially disrupts or interferes with the orderly operation of the school or the rights of other students and that:

a. a reasonable person should know, under the circumstances, will have the effect of physically or emotionally harming a student or damaging the student's property, or placing a student in reasonable fear of physical or emotional harm to his person or damage to his property;

b. has the effect of insulting or demeaning any student or group of students; or

c. creates a hostile educational environment for the student by interfering with a student's education or by severely or pervasively causing physical or emotional harm to the student. [Emphasis added.]

Bullying typically does not consist of only one act, but is more often a repeated pattern of tormenting, embarrassing, insulting or making fun of someone with the intent to hurt him or her. When bullying occurs in school, the victimized student can be affected in many ways, including a decline in academic performance and involvement or performance in sports or extracurricular activities. Cyber-bullying can also affect the bully the same way, because use of social media and electronic devices is so pervasive among students. The cyber-bullying could continue throughout the school day, not just after school or on weekends. Cyber-bullying can be emotionally devastating to a child or adolescent. It could lead to a student refusing to return to school due to embarrassment or shame, or could leave the child or adolescent in need of therapy to help deal with the psychological effects of being cyber-bullied, such as feeling helpless or powerless against the bully.

According to the 2013 Indicators of School Crime and Safety report prepared by the Bureau of Justice Statistics and the National Center for Education Statistics Institute of Education Sciences:

• Approximately 28 percent of students ages 12 to 18 report being bullied at school every school year;
• 6 percent of students in grades 6 through 12 have experienced cyber-bullying;
• 16 percent of high school students were electronically bullied in the past year; and
• 2 percent of LGBT students have experienced cyberbullying. (See Bullying Statistics and Information at http://americanspcc.org/bullying/statistics-and-information.)

Also, in June 2014, 14.8 percent of students reported being cyber-bullied through a variety of ways including websites, texting, e-mail, chat rooms or instant messaging. (See Cyberbullying at http://americanspcc.org/bullying/cyberbullying.)

The prevalence of cyber-bullying is unacceptable. Teens use online vehicles such as Instagram, Snapchat, Twitter and video-sharing sites (such as YouTube) to cyber-bully. As mentioned, online communication tools are a significant part of children's lives, and because these tools are accessible 24/7 and easy to use, they can be used to bully or menace other youths at all hours of the night and any day of the week. The online bullying can reach hundreds, thousands or millions of people. Many cyber-bullying victims do not know who is targeting them. Also, unlike bullying someone in person, cyber-bullying can be committed from a safe distance from the intended victim or victims.

In a recent study of a nationally representative sample of approximately 5,700 middle and high school students in the United States, 33.8 percent said they had been cyber-bullied during their lifetime, while 16.9 percent said they had been cyber-bullied within the previous 30 days. With regard to offending, 11.5 percent revealed they had cyber-bullied others during their lifetime, while 6 percent admitted doing so in the last 30 days. (See https://cyberbullying.org/Cyberbullying-Identification-Prevention-Response-2018.pdf.)

No child should be bullied, either in person or via electronic communications. Every child should be able to attend school and have a social life free of fear, embarrassment or threats. The ramifications of cyber-bullying can include criminal charges, reprimands at the school level, or a civil suit for monetary compensation for any social, financial, emotional or other harm sustained by the victim. The problem in attempting to put an end to cyber-bullying is that law enforcement agencies are reluctant to get involved in making charges against children or adolescents for cyber-bullying unless it clearly involves a crime or serious threat to someone's life.

If you are being cyber-bullied, or if you become aware of anyone who is being cyber-bullied, contact the National Center for Missing & Exploited Children's Cyber-Tipline at www.cybertipline.com.

Osborne is counsel at Einhorn, Harris, Ascher, Barbarito & Frost in Denville. Her practice is devoted solely to matrimonial and family law, including divorce, alimony, child support, child custody and domestic violence, among others.