I am often asked if there is a cyberlaw covering some new form of cyberabuse. Everyone is seeking a law specifically crafted around every new cyber problem. But, that’s not how criminal laws work. If we needed a specific law governing every little difference in how a crime occurs, we would have billions of new laws every year, and growing!
I will post a more extensive article I wrote on the elements of cyberbullying cases soon. But for now, think of every crime (offline, cyber and mixed) as a series of acts. Sometimes each of these individual acts are crimes in themselves. Sometimes they are when combined with other acts. Good prosecutors and law enforcement officers take the time to analyze the cases and unravel the threads to isolate all of the elements and find the right laws, or combination of laws, to fit the crime.
Creative lawyers, prosecutors and law enforcement investigators can “take it offline” looking at the criminal behavior through a “real life” lens. Look at each piece of the activity. Would these actions constitute a crime if they had occurred offline entirely? If so, do they also apply online? If not, is there a cyber-specific law that applies? Are there pieces that violate the law?
I was recently asked if trolls and griefers encouraging someone in their channels to take their own life is a prosecutable offense.
Let’s use my suggestion to take it offline. In real life, when crowds watch someone standing on a ledge about to jump, they often shout “jump!” If the person does, can we or should we charge them with contributing to his death? In the US, the answer is “no.”
There are exceptions when there is a special relationship between the person encouraging the suicide and the suicide victim. Parents and children, legal guardians and their charges, perhaps siblings who are responsible for each other, professionals and their patients/clients may face greater responsibilities because of a “fiduciary” relationship, where people are expected to look out for one another.
But in the US we have no legal responsibility to protect others without a special fiduciary relationship or special legal obligation. We can watch someone drown, even if we are good swimmers. We don’t have to pull someone from a fire or a car crash. Ethics and morals and humanism give us the obligation to help others, not the law.
So, how far can we go to encourage someone to hurt themselves? Pretty far. Shouting “jump” to a stranger on a ledge or typing or shouting the equivalent in cyberspace does not change the law. The law assumes that even with people shouting at you to jump, or set fire to your dorm room, as reasonable people, we won’t. We expect that common sense will prevail. Anything else in the US may infringe on free speech or freedom of expression in many other countries.
As tempting as it may be to want to bring charges against those online (or on the street) who shout “jump,” to do so, we would have to create the legal obligation to step in when someone needs help: an obligation to report it, help, take action – to do something. And if we do this to online communications, it will also have to apply to offline ones. It is unlikely that any law would withstand scrutiny if it didn’t.