Andrew Baker is a LLB/BCL candidate at McGill University Faculty of Law.

A Chicago area teen has been arrested and charged with misdemeanour disorderly conduct after reportedly posting a ranking of his female classmates on Facebook.

The post which numerically graded fellow students based on physical attributes allegedly contained a number of racial and misogynistic slurs.  Photocopies of the post were also circulated throughout the high school.  The issue of disciplining the student arose in January when school administrators were considering the possibility of expulsion.  This latest response from authorities has called into question whether disorderly conduct laws should apply to cases of cyberbullying.

In Illinois, disorderly conduct is defined as knowingly committing, “Any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace.”  Granted that the specific content of the post and the behaviour of the accused are unknown, the charge of disorderly conduct is seen by some as an extreme and arbitrary response given the numerous cases of rude online behaviour.   Existing legislation is useful in cases of privacy breach or harassment, but with little in the way of jurisprudential context for more general forms of bullying, who determines the legal threshold of when obnoxious communication becomes a criminal matter?

The public has become increasingly conscious of cyberbullying and electronic harassment issues.  Even though criminal prosecution is rare, a number of notable cases including the suicides of Megan Meier and Phoebe Prince have led to charges being laid.   In these most severe cases, government is often prompted to respond.  School boards and legislatures are specifically addressing the issue in an attempt to effectively define the boundaries of what constitutes electronic criminal harassment where existing legislation is deemed inadequate.   See here for a summary of the current state of cyberbullying legislation in the US.

Cyberbullying cases in Canada have generally been dealt with by existing law and no comprehensive cyberbullying-specific law exists.  For example, Ontario has amended existing legislation to specifically include cyberbullying.  The Canadian Teachers’ Federation recommends a similar amendment to the Criminal Code.   Some Canadian commentators argue that criminalization through new cyberbullying laws is not the appropriate response.  See here for an overview of Canadian cyberbullying research.

School policies directed at cyberbullying are often limited by the constraint of jurisdiction.  Just as school authorities have traditionally had difficulty expanding their jurisdiction to off-campus activities, their powers to regulate online behaviour is also limited.  Governing the cyber-world proves to be even a greater challenge as attackers are often veiled by anonymity.  Cyberbullying legislation is seen as a means to address those instances that cannot be directly dealt with by school administrators.

Despite the disturbing nature of these cases, anti-cyberbullying measures, whether based on new or existing law, have often drawn criticism.

Proponents of first amendment rights claim that such legislation infringes too far on freedom of speech.  On the other hand, those in favour of cyberbullying legislation argue that it provides legal clarity and addresses the problems of arbitrary application of the law.  They contend that it also provides another tool for prosecutors in difficult cases.  Moreover, a California appeals court has held that threatening online posts are not a protected form of speech.

Others question the efficacy of criminalizing such behaviours alleging that it is merely a reactionary measure that does nothing to prevent the harm of bullying before it occurs.  Often it is the case that laws are rapidly drafted in response to public outrage over particular instances without considering broader policy aspects.   A federal bill, the Megan Meier Cyberbullying Prevention Act, was passed by Congress in 2009. Missouri’s legislation, similarly dubbed Megan’s Law, was recently used in response to hateful YouTube and Facebook content.

What is interesting about the Facebook ranking case is that, while the content of the posts could be deemed hateful and offensive, there is no allegation of specific threats to any students.  Much of the new cyberbullying legislation is based on specific threats and harassment which may be the reason the Chicago area teen was charged with disorderly conduct.  The defendant in the Megan Meier case also did not make specific threats and was eventually acquitted.  It will be interesting to see how far the scope of prosecution will extend to these types of online posts.