Cyberbullying legislation: the role of cyberbullying law

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“The Internet is a tool with two faces: complete freedom and a source of knowledge on the one hand, a source of degradation and destruction on the other hand”.

(Chassin, 2017).

In addition to the benefits that the Internet offers us, such as a great source of useful information and literature, electronic banking, shopping from home, working from home, the Internet can also be a tool for criminal activity and violence. The increasing number of cases of cyberbullying is also confirmed by a survey conducted in 2016 in America, which found that 34% of students were victims of cyberbullying and 12% of students admitted to having committed cyberbullying (Bostanci Bozbayindir, 2019, p. 426). Cyberbullying is increasing every year, so the numbers are much higher today than in 2016.

The fight against cyberbullying takes place with legal and extra-legal methods. The non-legal methods are various awareness campaigns for children, staff in educational institutions and parents (Child Safety on the Internet, Stop Digital Violence, Choose Your Words, Prevent Hate), the legal methods refer to the legal sanctioning of cyberbullying. The question arises whether traditional laws are able to adequately protect victims of cyberbullying. The subject of this paper’s analysis is the legal regulation of cyberbullying as a type of violence perpetrated on social networks and the Internet.

• 2.    Types and statistics of Cyberbullying

  And if we talk about a type of violence that is a novelty compared to the traditional types of violence, as well as the fact that with the rapid development of technology, new types of cyberbullying can be expected (Filipović, 2022, p. 116), we can conclude, based on the research so far, that:

• 3.    Legal Consequences of Cyberbullying

  In the latest of a series of tragic cases in which a young person in Republika Srpska committed suicide due to cyberbullying, the public was unhappy with the way the relevant authorities acted after the young man reported to the police that a video in which he was mocked had been circulated on the internet, posted by people who had secretly recorded it. ACLording to information that appeared in some media outlets, the prosecution said it had received information from the police that it was a hoax. In the text published in Kurir (2022b) about this tragic event and after the reaction of the public that the Prosecutor’s Office did not issue an order to remove the video after the young man reported it, but that this happened after the young man had taken his own life, the Prosecutor’s Office stated in its response that the criminal offence of endangering security from the Criminal Law of the Republic of Srpska could not be applied to a specific case of cyberbullying, as there were no elements for this offence. Further evidence of the inadequacy of the regulations is the fact that in its response to the allegations that it did not take the prescribed measures, the prosecution states that “the order to remove recordings from social networks is not prescribed as such at all” (Kurir, 2022b). In some countries, including the Republic of Serbia, there is a problem with initiating proceedings for cyberbullying, as it is not provided for as a separate criminal offence. Previous events have shown that criminal acts of cyberbullying are classified under the offences already provided for in the Criminal code, and such a situation often leads to victims being forced to initiate a private prosecution lawsuit for ridicule on social networks, referring to the offence of insult, and to the perpetrators being charged with the crime of unauthorised recording, for which the punishment cannot possibly be commensurate with the consequences of the offence committed, despite the fact that a person committed suicide as a result of his or her violent act. At the last event, the Association of Judges and Prosecutors of the Republic of Serbia announced an initiative calling for amending the existing criminal law and introducing a criminal offence for cyberbullying, prosecuted ex officio, “which adequately punishes the perpetrators and actors of cyberbullying, which is increasingly present” (published in Kurir, 2022c).

• 4.    Cyberbullying legislation comparative review

• 4.1.    England

  The first group of countries to apply existing laws to cyberbullying includes England, where cyberbullying is not a crime in its own right. In England, depending on the type of cyberbullying, some of the four existing laws are applied to acts of cyberbullying, namely: the Protection from Harassment Act 1997; the Communications Act 2003, which makes it an offence to transmit harmful messages; the Law on Malicious Communications Act 1988; the Offences Against the Person Act 1861; the Communications Act 2003; or the Criminal Justice and Public Order Act 1994 (Franco & Ghanayim, 2019, p. 21; Bostanci Bozbayindir, 2019, p. 435).

• 4.2.    US

  The group of states that have decided to enact laws making cyberbullying a separate criminal offence in response to cyberbullying includes 49 US states (Bostanci Bozbayindir, 2019, p. 435). The state of Missouri was one of the first to define cyberbullying as a separate crime (Franco & Ghanayim, 2019, p. 25). In the US, all states except Montana have passed laws on cyberbullying that require schools to take certain measures to prevent and punish instances of cyberbullying among students. The definition of cyberbullying and the level of punishment varies from state to state. For example, in some states such as Louisiana, the penalty for cyberbullying is defined as “an act in which a text, image, or recording is transmitted electronically with the malicious intent to coerce, torment, intimidate, and injure a minor under the age of 18 and is punishable by a fine of $500 or six months in prison” (Franco & Ghanayim, 2019, p. 24). In Arkansas, cyberbullying is an offence for which the penalty is not limited to minors and is defined as “electronic communication intended to intimidate, coerce, abuse, terrorise, or harass another person” (Franco & Ghanayim, 2019, p. 25).

• 4.3.    Austria

• 4.4.    Italy

  Italy is one of the countries that passed a law in 2017 banning online harassment, the publication of insults and defamation, and the blackmail of minors. We conclude that in Italy, as in some states in the US, protection against cyberbullying is limited to minors by a specific law, which we cannot consider the best solution, considering that the victims of cyberbullying are often younger adults. The law in Italy “is dedicated to the first victim of cyberbullying in Italy”, Carolina Picchio (14 years old), who killed herself by jumping out of a window after being abused by posting a video online showing herself drunk. This video was subsequently published on Facebook and triggered an avalanche of online abuse by her ex-boyfriend and peers. (Bostanci Bozbayindir, 2019. p. 437; Franco & Ghanayim, 2019, p. 24). Italian law provides for the right of victims of cyberbullying and their parents to demand that the website remove the offending content within 48 hours (Bostanci Bozbayindir, 2019. p. 437). The law in Italy is characterised by the fact that it does not provide for any punishment for an offence or crime committed by the person who commits cyberbullying, but only allows for the removal of texts, images or videos from the internet (Franco & Ghanayim, 2019, p. 24).

• 4.5.    Germany

When analysing the application of the Criminal Code (hereinafter CC) of the Republic of Serbia to cases of cyberbullying, we must first emphasise that Article 1 of CC states that “no one can be convicted for an act that has not been determined to be a criminal offence”. This is exactly the problem that the prosecutor’s office in Banja Luka pointed out when it stated that it could not apply the criminal offence of endangering security to a specific case of cyberbullying in order to give consent to the removal of the video. In the Republic of Srpska, perpetrators of cyberbullying were arrested for unauthorised recording after a young man who was the victim of their taunting on a social network committed suicide. Our legal system (Article 143 of CC) stipulates that a fine or imprisonment of three months to three years can be imposed for this offence. Unauthorised publication of recordings and images is also a common form of cyberbullying (Article 145 CC), and this also carries a fine or imprisonment of up to two years. For insult as one of the most common forms of cyberbullying (Article 170 of the CC), it is prescribed that the proceedings be initiated by a private prosecution, which further complicates the position of the victim of cyberbullying, and a fine is provided for. Comments emerged in public that violent persons should be prosecuted for the offence of inciting and assisting suicide (Article 119 of the CC). The analysis of the constituent elements of this offence suggests that perpetrators would be convicted of this offence due to its constituent elements (subordinate position of the victim in relation to the instigator). Certain forms of cyberbullying are punishable under the offence of persecution (Article 138a CC). Finally, defamation, another common form of cyberbullying, is not provided for in the Criminal Code, but the victim may invoke the Law of obligations (Article 200) when initiating proceedings for non-material damage. Cyberbullying is not the same as traditional violence and has some peculiarities, so sometimes we cannot refer to prescribed acts or we refer to acts whose sanctions the legislator would certainly not prescribe if he had in mind the consequences of cyberbullying.

With the emergence of cyber nations, legislation is also needed to sanction cyberbullying. Based on the legislation governing cyberbullying, countries can be divided into two groups. The first group consists of countries that sanction cyberbullying through the application of one of the existing criminal offences (insult, defamation, persecution, unauthorised recording, hate speech). The second group includes those countries that have provided for cyberbullying as a separate offence, as well as more serious forms of offences, such as the case of cyberbullying due to which a person commits suicide, or aggravating circumstances considering the vulnerability of the person due to his or her age or the existence of emotional closeness between the perpetrator and the victim. In this group of countries, we can again make a division between those that have enacted specific laws for cyberbullying against minors and those that sanction cyberbullying as a separate offence regardless of age (Bostanci Bozbayindir, 2019. p. 435).

Germany is one of the countries where cyberbullying is not considered a crime in its own right, but falls under other criminal offences such as insult, stalking, violation of privacy by publishing photos, distribution of violent 104

• 5.    Conclusion

In view of the increasing percentage of cyberbullying, especially among children and adolescents, the consequences of which for the victims are serious mental disorders and, in the most serious cases, even suicide, all countries have taken certain measures, both illegal and legal. In response to cyberbullying, in addition to preventive measures and campaigns highlighting the harms of cyberbullying (Keep Children Safe Online, Let us Stop Digital Violence, Choose Your Words, Prevent Hate), it is necessary to harmonise laws to sanction cyberbullying appropriately.

In response to cyberbullying, states have chosen one of the models for sanctioning cyberbullying, providing for cyberbullying as a separate criminal offence or sanctioning cyberbullying by applying existing provisions on criminal offences (libel, defamation, unauthorised recording, photography, unauthorised publication of recordings and images, etc.).

Serbia is one of the countries that have decided to sanction cyberbullying through the application of existing criminal offences. In practice, this model has proven to be insufficient, as certain forms of digital violence cannot be responded to in the right way by applying the sanctions prescribed for existing acts. Furthermore, it is necessary to consider the issue of responsibility not only for those who post comments, pictures and videos, but also for those who leave inappropriate comments, jokes or hate. The conclusion from all this is that the legal regulation of cyberbullying in Serbia is not sufficient to protect victims of cyberbullying and that it is necessary to consider adopting a law on protection against cyberbullying that takes into account all the specific features of cyberbullying that distinguish it from ordinary, traditional violence.

Janković V. Aleksandra

Akademija strukovnih studija Južna Srbija – Leskovac, Odsek Visoka škola za vaspitače Bujanovac, Srbija

Stošić V. Lazar

Don državni tehnički Univerzitet, Rostov na Donu, Ruska Federacija; Fakultet za menadžment, Sremski Karlovci, Univerzitet UNION Nikola Tesla, Beograd, Srbija