Cyberbullying

Perhaps in response to news reports of teen suicides blamed on embarrassing and/or insensitive web postings, I have been fielding a fair number of calls about North Carolina’s cyberbullying statute. The statute, G.S. 14-458.1, was enacted in 2009 and applies to offenses committed on or after that date. S.L. 2009-551, sec. 3. Subsection (a) sets out the elements of the offense. A person is guilty of cyberbullying when he or she uses a computer or computer network to do any one of the following six things: (1) with the intent to intimidate or torment a minor

(a)       builds a fake profile or Web site;

(b)       poses as a minor in an Internet chat room or electronic mail or instant message;

(c)       follows a minor online or into an Internet chat room; or

(d)       posts or encourages others to post on the Internet private, personal, or sexual information pertaining to a minor; or

(2) with the intent to intimidate or torment a minor or the minor’s parent or guardian

(a)       posts a real or doctored image of a minor on the Internet;

(b)       accesses, alters, or erases any computer network, computer data, computer program, or computer software, including breaking into a password protected account or stealing or otherwise accessing passwords; or

(c)       uses a computer system for repeated, continuing, or sustained electronic communications, including electronic mail or other transmissions, to a minor; or

(3) plants any statement, whether true or false, tending to provoke or that actually provokes any third party to stalk or harass a minor; or (4) copies and disseminates, or causes to be made, an unauthorized copy of any data pertaining to a minor for the purpose of intimidating or tormenting that minor (in any form, including, but not limited to, any printed or electronic form of computer data, computer programs, or computer software residing in, communicated by, or produced by a computer or computer network), or (5) signs up a minor for a pornographic Internet site, or (6) without authorization of the minor or the minor's parent or guardian signs up a minor for electronic mailing lists or to receive junk electronic messages and instant messages, resulting in intimidation or torment of the minor. The new provision is in G.S. Chapter 14, Article 60, pertaining to computer-related crime. G.S. 14-453 contains the definitions that apply to that article; it defines the statutory terms computer, computer network, electronic mail, etc. Punishment depends on the defendant’s age when the offense occurs. The offense is a Class 1 misdemeanor if the defendant is eighteen or older at the time of the offense. G.S. 14-458.1(b). If the defendant is under eighteen, it is a Class 2 misdemeanor. Id. The statute provides for discharge and dismissal of charges against defendants under eighteen, in certain circumstances, and for expunging the record if discharge and dismissal is ordered. G.S. 14-458.1(c) Aside from questions about the elements of cyberbullying, another question that comes up is: “If cyberbullying doesn’t fit; what else can I charge?” The answer, of course, depends on the facts. Several related offenses include:

• Communicating threats (G.S. 14-277.1)
• Threatening letters (G.S. 14-394)
• Harassing phone calls (G.S. 14-196)
• Stalking (G.S. 14-277.3A)
• Cyberstalking (G.S. 14-196.3)
• Ethnic intimidation (G.S. 14-401.14)
• Committing a misdemeanor because of prejudice (G.S. 14-3)
• Extortion (G.S. 14-118.4)
• Accessing a computer without authorization (G.S. 14-454(b))
• Computer trespass (G.S. 14-458)