Cyberbullying is not a new issue. As far back as 2009, the insidious practice was thrown into the spotlight when American teenager Megan Meier hanged herself after being cyberbullied by an adult neighbour posing as a fictitious boy on the social media platform MySpace. She was three weeks shy of her 14th birthday.
No criminal charges were filed in connection with her death, as no one could find a charge that “fit.”
Over a decade later, in the wake of all the social restrictions brought on by the COVID-19 pandemic, people are more online – and more at risk – than ever. Yet the laws around cyberbullying are still woefully underdeveloped.
In his comparative study on the legal responses to cyberbulling in both the US and South Africa, law student Ian Janse van Vuuren states that “present legislation, locally and internationally, is not optimally positioned to deal with the issue of cyberbullying.”
In America, for example, there is no federal law that addresses cyberbullying specifically. The only time a cyberbully may face prosecution is if their bullying overlaps with discriminatory harassment and federal civil rights laws – such as if someone is bullied because of their gender, race, sexual orientation, national origin, religion or disability.
Because of this “loophole,” many cyberbullying cases are actually prosecuted as harassment, while others might attract criminal charges for impersonation, hate crimes or violations of the Computer Fraud and Abuse Act.
Because the US Federal government has not yet passed a national law on cyberbullying, most American states just write their own. These include making amendments to existing laws giving schools more authority to get involved in an effort to put an end to the practice.
South Africa, too, does not have specific legislation dealing with cyberbullying. However, victims do have some recourse through both civil and criminal channels.
Depending on the nature of the cyberbullying incident, a bully may find themselves facing charges of crimen injuria (injury to a person’s dignity, such as if a child is being humiliated using racially offensive or improper language), criminal defamation (intentional and unlawful publication of something untruthful that damages a person’s reputation) or sexual exploitation and grooming (threatening someone in order to get pornographic images or similar from them).
It all smacks a little of notorious gangster Al Capone, who dominated organised crime in Chicago in the mid 1920s and early 1930s. Despite dealings in illegal gambling, prostitution and bootlegging rackets – not to mention more than a sprinkling of murders thrown in – Capone was eventually arrested and convicted on charges of tax evasion.
But even when cyberbullying charges are brought against perpetrators using laws that already exist, they come up against numerous obstacles. What constitutes bullying and what is merely freedom of expression, for example?
This is a difficult line to draw and an even tougher one to enforce with any degree of consistency. All too often, the defendant has to rely on the perspective of the person handling their case.
As Janse van Vuuren says, “It is clear that there are jurisdictional and legal interpretation issues between the right to freedom of expression, and the right to privacy, which hinders effective remedy implementation from a legislative point of view both in South Africa and internationally.”
So surely then, the time is more than ripe for tailor-made, specific and unambiguous anti-cyberbullying laws?
Our children need the iron-clad protection that specific laws like this would provide. In South Africa, 10 percent of our digital population is teenagers between the ages of 15 and 19, many of whom have no idea how to protect themselves, or their information, online. They can’t rely on help from home, as many parents are not very knowledgeable about cyber safety either. Even our teaches face an acute shortage of resources to help them help their learners.
In the US, preventative programmes have at least been implemented at individual state level to try and stop cyberbullying in schools. In the UK, cyberbullying is now a subject being taught in many schools. Other initiatives include the establishment of the National High-Tech Crime Unit, which is now part of the Serious Organised Crime Agency.
Sadly, in South Africa, our children have none of this type of protection.
The laws are even more nebulous when the cyberbullies are themselves children.
In South Africa, for example, if the perpetrator is younger than 10 years old, they are deemed to not have criminal capacity and can therefore not be found guilty of a criminal offence.
In the US too, there is no suitable punishment for minors who engage in cyberbullying. Schools may only censor “student-initiated expression” when it leads to a “substantial disruption in education.”
As unsatisfactory as it all is, the true challenge when it comes to cyberbullying, does not lie in the application of legislation, but in preventing it in the first place.
And for parents whose children are, or have been, the victims of cyberbullying, the ultimate goal is not to see the perpetrator punished, but to restore self-respect and create greater resilience in their child. What a bullied child needs most is to regain their sense of dignity. Sometimes that means standing up to the bully, sometimes it doesn’t.
Occasionally, professional help may be needed to get this right.
If your child is suffering because of cyberbullying, please call the South African Depression and Anxiety Group (SADAG) on 011 234 4837 or 0800 20 50 26 to speak to a counsellor. Their offices are open 8am to 8pm, 7 days a week. They can also help you with a referral to a psychologist, psychiatrist or support group if needed.
They’ve published an article on cyberbullying on their website, which you may find useful. Here’s the link:
You can also contact Childline on 08000 55 555. This line is open 24/7, and it’s a free call from all networks. Or take a look at their website: www.childlinesa.org.za. They have several downloadable resources which may help you.
You are not alone.