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.
