Cyberstalking and cyberbullying are relatively new phenomena, but that does not mean that crimes committed through the network are not punishable under legislation drafted for that purpose.
In a general sense, it would seem simple to legislate this type of behavior; slander and libel laws exist to tackle these situations.
A 2006 National Crime Prevention Council survey found that some 40% of teens had experienced cyberbullying at some point in their lives, making the problem particularly widespread.
[5] Commonwealth offences that criminalise the misuse of telecommunication services are also relevant when technology is used to communicate harassment[6] or threats.
The primary distinction is one of age; if adults are involved, the act is usually termed cyberstalking, while among children it is usually referred to as cyberbullying.
Particularly in instances where there are no laws explicitly against cyberbullying, it is not uncommon for defendants to argue that their conduct amounts to an exercise of their freedom of speech.
[16] Internet free speech issues have certainly made their way through the court systems, even as far back as cases from the mid-90s.
[17] The focus on legislating cyberbullying and cyberstalking has largely come about as a result of the perceived inadequacy, generally by legislators and parents of bullying victims, of existing laws, whether those existing laws cover stalking, unauthorized use of computer resources, or the like.
For example, in the case of United States v. Lori Drew, in which Megan Meier had committed suicide after being bullied on MySpace, three of the four charges against the defendant (Drew) were actually in response to alleged violations of the Computer Fraud and Abuse Act, since specific statues against cyberbullying were not on the books.
The jury eventually found Drew innocent of the charges (but guilty of a misdemeanor), a verdict that was later set aside by the judge.
In the case of Tyler Clementi, who killed himself after video of his homosexual encounter was broadcast on the Internet, prosecutors charged the defendants with invasion of privacy and computer crimes.
[21] Finally, it's not uncommon for cyberbullying to be coupled with "traditional", in-person bullying, for example, in the suicide of Phoebe Prince.
As in Connecticut, New Jersey, and Missouri, the Prince case led to stricter anti-bullying legislation in Massachusetts.
[26] After sending hundreds of threatening e-mails to an actress, another male convicted after spending months in jail waiting for trial was sentenced in 2001 to five years probation, forbidden access to computers and forced to attend mental health counseling.
In response to Phoebe Prince's suicide, as well as that of Carl Walker—both of whom had been bullied before taking their lives—the Massachusetts legislature in 2010 passed what advocates call one of the toughest anti-bullying laws in the nation.
The law prohibits both online taunting and physical or emotional abuse, and mandates training for faculty and students at schools.
The other bill, SB 5628, focused on online harassment and was written with the Anti-Defamation League to update the existing law to uphold the First Amendment.
[38][39] Washington takes the approach of putting the focus on cyberbullying prevention and response directly on the schools.
An early example, the Violence Against Women Act, passed in 2000, included cyberbullying in a part of interstate status on harassment.
Her efforts were met with little enthusiasm, however, as Representatives from both the Republican and Democratic parties were concerned with the bill's impact on the freedom of speech.
[42] One of the oft-cited arguments against the bill comes from talk radio, with the concern expressed being that the law would be used to silence political opponents who use the airwaves to espouse divergent viewpoints.
Senator Frank Lautenberg (D-NJ) and Representative Rush D. Holt, Jr. (D-NJ-12) introduced the "Tyler Clementi Higher Education Anti-Harassment Act", which would mandate that colleges and universities that receive federal funding have policies in place to address harassment—including cyberbullying.
[46][47] Universities would be required to address harassment that focuses on real or perceived race, color, national origin, sex, disability, sexual orientation, gender identity, or religion.
However, it merely focused on financial crimes and neglected interpersonal criminal behaviours such as cyberstalking (Behera, 2010; Halder & Jaishankar, 2008; Nappinai, 2010).
[51] New Zealand Minister of Justice Judith Collins plans to introduce a law that would make it an offence to incite people to commit suicide, or post material that is grossly offensive by the end of 2013.