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Cyberbullying Is Now a Crime in New Zealand. Is That the Right Approach?

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There's an increasing recognition that cyberbullying, like more traditional face-to-face bullying, has harmful effects that can last for years. But that recognition hasn't led to a consensus about how to respond to this particular form on online harassment.

And it's not a rare problem. In 2013, about 22 percent of U.S. students ages12-18 reported being bullied at school during the school year, according to the most recent federal data. That same year, about 7 percent of students ages12-18 reported being cyberbullied anywhere during the school year.

If cyberbullying is so bad, why not make it illegal?Computer-Lab_560x292blog_iSTOCK.jpg

New Zealand recently passed a new law, the Harmful Digital Communications Act of 2015, that criminalizes "harmful digital communication" with penalties including fines of up to $50,000 or up to two years in jail for perpetrators who are at least 14-years-old. The bills provisions cover "racist, sexist and religiously intolerant comments, plus those about disabilities or sexual orientation," according to the National Business Review. It also introduces penalties of up to three years jail time for "incitement to suicide," and provides a process for reporting problematic posts and having them taken down.

According to New Zealand media, support for the legislation grew after a group of boys bragged online about sex with underage girls. It reminds me of a wave of interest in the United States in passing local anti-bullying ordinances a few years ago after a few high-profile youth suicides were linking to bullying on the internet.

Supporters of such measures say they send a clear message that such harassment is not tolerated and that public officials are committed to rooting it out, and they often say the steepest penalties allowed under those laws should be reserved for the most severe instances of cyberbullying.

But criticisms say such inflexible approaches may even have the counterintuitive effect of making bullying problems worse. Here are some of their concerns:

Creating steep penalties for bullying or cyberbullying may make victims less likely to report it.

 "Knowing the immediate severity of the punishment for bullies, victims might hesitate to report them, and school officials might be more likely to look the other way, groups, including the National School Climate Center, said in a brief filed in a New York court case related to a local statute that criminalizes cyberbullying," I wrote in a blog post last year. The New York Court of Appeals struck down that law.

Reporting of bullying is important not just so perpetrators can face consequences, experts say. It's also important for victims to feel free to share their experiences so they can quickly receive help from supportive adults to counter bullying's effects, they say.

Monetary penalties may exacerbate inequality.

With any law that sets monetary penalties, youth advocates express concern that children from low-income families will be more heavily affected than their peers. That's also been the case with U.S. laws related to truancy. Critics argue that families with higher incomes pay the fines and move on while fines stack up and grow for poor parents, sometimes even leading to jail time.

Cyberbullying laws lead to free speech concerns.

Because the way we use the internet is constantly growing and changing, it's difficult to word a law so that it is broad enough to capture every form of potentially harmful online postings but also narrow enough that it doesn't infringe on free speech rights, opponents of such laws have said.

That's ultimately why a judge struck down the New York law I mentioned earlier.

"Cyberbullying is a serious concern that all communities must confront, but there are better and more constructive ways to address the problem than giving children criminal records,"  NYCLU Senior Staff Attorney Corey Stoughton, the lead counsel on the case, said in a statement. "Communities across New York and the nation should take note that criminalizing First Amendment activity is unlawful and does nothing to address the causes of bullying or prevent it from taking place."

This is particularly problematic with laws that ban "bullying" in general, rather than specific forms of online speech that are more easily defined and identified. That's because there's not a consensus about what bullying actually means, as I wrote in an Education Week story.

So how should policy makers address cyberbullying?

"Criminalizing something requires a more concrete and objective way of identifying the behavior," Deborah Temkin, a researcher for Child Trends who previously led anti-bullying efforts at the U.S. Department of Education, wrote in an email.

"Especially as the consequences become even more detrimental for the accused youth (including exacerbating the school to prison pipeline), criminalization raises the bar on what will be considered bullying, leaving out less serious, but still potentially devastating, incidents, which could leave some bullied youth feeling as though they have no support or recourse," she wrote. "Criminalization helps neither the accused youth nor the targeted youth resolve the situation and does not address underlying issues that make be driving the bullying behavior."

So what should be done? Opponents of criminalizing bullying say that more resources should be put into improving school climate and building positive relationships between youth and adults in an effort to prevent bullying.

As groups wrote in that New York brief:

"Research has shown that when students feel engaged, supported, and safe, they are less likely to misbehave. Having a positive school climate results in higher levels of student engagement and self-discipline, fewer incidences of school violence, and increased staff and student feelings of safety, among other positive outcomes. The net result is that a positive school climate decreases the need for disciplinary actions. Creating a positive school climate will, to a large extent, prevent the need for punishment by decreasing incidences of cyberbullying before they occur."

Of course, not all bullying is connected to schools and, unfortunately, adults are sometimes perpetrators as well.

What do you think? Are these laws helpful? Are the criticisms valid?

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