The following article by HLS Professor John Palfrey was published March 31, 2009 on the First Amendment Center Online site. Palfrey’s article is part of an online symposium titled Cyberbullying Public Schools.

Cyberbullying is a big problem, in more than one respect. By virtually all accounts, bullying of young people by their peers online is on the rise. The magnitude of this increase depends heavily on how exactly one defines the term “bullying” — results of recent studies vary widely in this respect — but no serious observer disputes that we are observing a significant increase in bullying online. The harm caused to young people by their peers, primarily psychological in nature, can be substantial. Sometimes the harm falls in the category of teasing that few would say we should regulate. Then again, sometimes the actions are so harmful in nature that they already violate civil or criminal law.

Cyberbullying is also a problem in the sense that it is very hard to come up with a solution that is likely to help protect our children from one another online. The behavior that one would like to curtail — kids saying harmful things to one another — is part of typical adolescent behavior to some extent. In many cases, what concerns us is behavior that we want to stop, but not to criminalize; the image of filling our prisons with teenagers who have been teasing one another online is plainly unattractive. And many of the more aggressive responses to online bullying would curtail First Amendment freedoms that minors ought to enjoy as their parents and teachers do. All the same, it’s too great a worry to make throwing up our hands an adequate response.

Task force
The topic of cyberbullying caught the attention of the members of the Internet Safety Technical Task Force last year, which I chaired. The Task Force brought together representatives of 29 leading companies, child advocacy groups, and academics between February and December 2008. We worked together to analyze the safety issues facing young people online. We began, as the attorneys general who commissioned the study requested, looking at the problems of unwanted contact and access to harmful content online. By probing the nature of these harms, the group considered the ongoing concerns of sexual predation and access to harmful content.

In the process of researching the risks to children online, concern about bullying kept arising as a similarly important concern. The final report of the task force included an extensive literature review, drafted by the scholars danah boyd and Andrew Schrock and supported by a blue-ribbon academic advisory board. While sexual predation and unwanted content remain substantial concerns, the dramatic rise in recent years has been the increase in the likelihood that children will suffer harm online at the hands of their peers. (See “Enhancing Child Safety and Online Technologies.”)

The data that show a sharp increase in bullying online need to be considered in light of a series of additional bits of context. First, overwhelmingly, most of the ways in which young people use digital technologies are positive. (See Digital Youth Research Report.)These technologies have become part of the fabric of life for young people. Most young people, at least in the United States, do not distinguish between their “online” and “offline” lives. As a result, many of the good things that have gone on offline also happen, in one form or another, online. So, too, many of the bad things that happen in everyday life play out in one form or another online.

The second important thing to note by way of context is that digital technologies themselves do not have a “nature.” The Internet, as one core part of the digital architecture, is famously a “stupid” network. A key design principle of the Internet, the end-to-end principle, calls for it to “pass all packets.” The network itself is not good or bad; it is merely a conduit for human and machine-to-machine interaction. It’s important to focus on the behavior — how people use digital media — not on the technology.

Third, it’s an open question among researchers as to whether bullying overall is on the rise or not. Again, it is quite clear that more young people are bullying one another than ever before via digital technologies. What is not clear is whether this replaces any traditional, offline forms of bullying. It could be that bullying is neither up nor down as an overall trend, but rather just shifting venues. It also may be that bullying is all of a sudden brought to the attention of adults who previously could not see it happening on the playground or in the schoolyard. It may be, too, that bullying is, for the first time, recorded for adults and others to see after the fact. That does not change the very real harm caused to individual young people by bullying online, but it does mean that we should be cautious before we call this bullying an epidemic.

In light of the growing likelihood of harm occurring to young people at the hands of online bullies, our instinct to regulate the digital environment more aggressively makes perfect sense. As parents and teachers, we find ourselves at a loss to stop harm that is happening to our children and students. School administrators worry that their policies are out of date. Law enforcement officials puzzle over when and whether they have a role in helping young people in these circumstances.

The most effective solution to cyberbullying is to combine a series of approaches to protect minors. This notion is true of the vast majority of problems online; there is rarely a single approach that will satisfactorily solve the problem. Education, technology and law reform each have a role to play.

The first place to look is to the young people themselves. Minors can help address the problem because they can lead by example. Young people listen to one another, and together they establish powerful social norms. This is particularly true in terms of how young people act in the context of online social environments. Constructive social norms can lead to widespread change in how young people act in online environments; likewise, social norms (such as a willingness to download music illegally) can lead to widespread lawbreaking.

Education, in this respect, is of course crucial. Parents, teachers and other adult mentors need to intervene with the young people in their lives to give guidance about how to interact with one another and to lead by example. Parents and teachers can, in the course of conversation, shed light on the potential harm that online bullying can cause and the consequences for both the bully and the person who is being harmed. Other young people — say, college students returning to their high school for a community meeting — might help to spark these important conversations within schools and after-school environments. It is possible to make certain harmful behavior “uncool” in such a way as to reduce the incidence of young people hurting one another in these ways.

Technology companies can help, too. The large social networks — Facebook, MySpace, BlackPlanet, LiveJournal, Bebo, and so forth — can help to set a tone for behavior that is permissible and that which is not. Online communities can be given tools to self-police and rules on the site can ban harmful speech. By contrast, some online Web sites — the abominable AutoAdmit message board leaps to mind, as does the now-defunct JuicyCampus — seem to encourage the worst kind of online discourse.

Unlawful expression
In many respects, the law already helps to provide causes of action against cyber-bullies. As Ron Collins points out in his foreword, if the online speech involved is defamatory, the bully may be held liable for harm done to her peer. If the speech is obscene, if it rises to the level of a true threat, or if it is intimidating, the act of posting it online might violate a host of civil and criminal laws. The issue in these cases is enforcement, not whether or not the speech is unlawful in the first place.

That’s not to say that there is nothing further to be done to adjust the law. The law might also be changed to ensure that online intermediaries have an obligation to help those who are harmed online. The reason that AutoAdmit became such a symbol of bad behavior was because the site operators refused to cooperate in any way to help those who were harmed by defamation on their site. Many law students, among others, were bullied — presumably by peers who knew them — through defamatory online expression on the AutoAdmit Web site. For quite some time, the students harmed had no recourse: the site operators refused to take down the harmful material, even when notified of the harm, and the students could not identify the people who had posted the harmful speech anonymously because the site operators claimed not to keep any log files. The site operators hid behind federal law: “Section 230 of the Communications Decency Act, which provided them a safe harbor.

Affirmative obligations
The growth of online bullying means it is time to rethink this particular safe harbor. The question to ask is whether such site operators might have some form of affirmative obligation in cases where harm to minors is clear. One could imagine at least two ways to amend the safe harbor. First, one could require online intermediaries to respond to notice from those who have been defamed by taking down the defamatory content if the intermediary wishes to be protected by the safe harbor (which is what we do in the context of copyright, through Section 512 of the Digital Millennium Copyright Act.

An alternate approach would be to require intermediaries to retain log files for a certain period of time and to participate in law enforcement efforts to bring those who defame others to justice. Each of these changes to the law would have demerits. Those critical of tinkering with Section 230 would point, correctly, to the risks to online innovation created by such changes and to the liability regime fostered by them. To establish a notice and take-down procedure to track the copyright processes would no doubt have a chilling effect on some speech online and it would add to transaction costs associated with running an online intermediary that presently do not exist. A requirement to retain log files would have a negative effect on individual privacy in an era where privacy interests are already under attack.

There is no easy answer to the problem of online bullying. The most effective approach — education, with a view toward establishing positive social norms — is the hardest to accomplish. It is also the least satisfying as an answer. We should consider other approaches, including law reform and the use of new technologies in online environments, but we should do so with the knowledge that these approaches are likely half-measures at best — partial solutions to this growing problem facing our kids and our society at large.

John Palfrey is Henry N. Ess III Professor of Law and Vice Dean for Library and Information Resources at Harvard Law School. In these roles at HLS, he is director of the school’s library and co-chair of the IT committee. He is also a faculty co-director of the Berkman Center for Internet & Society. Palfrey’s research and teaching focus on Internet law, intellectual property, and the potential of new technologies to strengthen democracies locally and around the world. He is the co-author of “Born Digital: Understanding the First Generation of Digital Natives” (Basic Books, 2008) and “Access Denied: The Practice and Politics of Global Internet Filtering” (MIT Press, 2008).