Bullying is aggressive behaviour by someone or a group with the intention of causing harm to a person either physically or psychologically. It is intended to intimidate or humiliate the victim. It is often so relentless and persistent that it causes severe emotional distress. Bullies typically target individuals who they perceive as weak or vulnerable. The traditional form of bullying through teasing, name-calling, or spreading rumours, have been around forever.

But the proliferation of the internet and smartphones, bullying has taken a new meaning. Online bullying or cyberbullying is a relatively new phenomenon and has taken society by storm.

With the use of text messaging, emails, and social media, more and more people are getting involved in it.

The extent of Cyber Bullying

Cyberbullying or online intimidation is not limited to school-going children, but it has infiltrated the workplace also and has become increasingly prevalent. Cyberbullies often target their victims anonymously emboldened with the fact that retaliation is unlikely in the absence of physical confrontation.

The anonymity of the internet has instilled a sense of impregnability among the bullies. They wrongly believe that they can never be identified or tracked down. However, a cyberbullying attorney would know how to track them down.

Virginia’s anti-cyberbullying statutes

One of Virginia’s key anti-cyberbullying statutes is Section 18.2-152.7:1 of the Virginia Computer Crimes Act. Titled Harassment by Computer, It states that if any person, with an intent to coerce, intimidate, or harass, communicates to another person, using computer or computer network, obscene, vulgar, lewd, lascivious, profane, or indecent language, or makes any proposal or suggestion that is obscene in nature, or threaten any illegal or immoral act, then he/she shall be guilty of class 1 misdemeanour. He can be sued for damages through a civil lawsuit.

Civil Lawsuit

For the civil suit to be successful, a cyberbullying lawyer, on behalf of the victim, will have to prove that the accused had an intent to coerce, intimidate, or harass, and that the bully sent one or more messages that contained obscene, vulgar, profane, lewd, lascivious, or indecent language, or made a suggestion or proposal of an obscene nature, or threatened an illegal or immoral act. If electronic communication contains any one of these categories of harassment, the statute will have been violated.

What Constitutes Cyber Bullying in the Eyes of Law

In practical terms, a communication that is merely profane or vulgar may not be enough to constitute cyberbullying, despite what the statute says. The Virginia Supreme Court has held that there has to be actual obscenity if a conviction is sought under the first or second category. Additionally, to be considered obscene, the communication must also violate another statute, Section 18.2-372. It defines obscenity in a manner that conforms to the United States Supreme Court’s pornography exception to the First Amendment’s right of free speech.

Under this statute, a work is considered obscene if (1) “the average person, applying contemporary community standards, would find that, when taken as a whole, appeals to the prurient interest” and (2) “in a patently offensive way, the work depicts or describes, sexual conduct or excretory functions specifically defined by applicable state law” and (3) “the work lacks serious literary, artistic, political, or scientific value”. Further, the phrase “appeals to the prurient interest” is limited to appeals to a “shameful or morbid interest in sex.

Obscenity is, however, not required under the third category, that is, any illegal or immoral act. An illegal act, by definition, is one that violates the criminal code. Whereas, an immoral act is one that violates society’s social code, that reflects its collective sense of moral propriety. Either one of these acts will satisfy the third category under Section 18.2-152.7:1.

If a communication involves threats to commit illicit or immoral acts, whether the communication also happens to be obscene is immaterial. Cyberbullying can take many forms. In most cases, there is a direct attack through instant messages, text messages, email, and social media posts. Others take an indirect approach of turning the victims’ friends and family against them by posing as the victim or using other online deception techniques.

Sometimes the harassment can quantify to defamation or intentional infliction of emotional distress. Whatever be the form of online harassment, victims should seek advice from a cyberbullying defence attorney to file civil suits against the perpetrators.