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Legal: A New Tool to Fight Cyberbullying

Legal: A New Tool to Fight Cyberbullying

This article is provided for informational purposes only and is not intended as legal advice; any legal questions must be addressed to a qualified attorney of your choosing.

A New Tool to Fight Cyberbullying

In 2016, David Bartlett Molak of San Antonio took his own life at the young age of sixteen years.  Despite his achievements of becoming an Eagle Scout along with excellent grades and behavior, David became the target of a growing trend – online bullying, or what has now become termed as “cyberbullying.”  David’s parents, along with other many other concerned parents, lawmakers, and others, joined together and created a foundation that has resulted in a sequence of new laws across the nation that offer tools for protecting students, both children and teenagers, from this new threat. 

Cyberbullying often starts with a text message, a social media post, or an e-mail,  but can originate as any type of electronic communication that can be viewed, shared, or allows others to participate/contribute.  Cyberbullying can originate from one student, or may involve numerous students posting hateful, negative and/or threatening comments.  This behavior can occur over days, weeks or even years, and tends to be stifling to younger individuals who do not have the ability to protect themselves sufficiently. 

In Texas, and many other states, the law regarding cyberbullying for those who are 18 years of age or younger has been coined “David’s” law.  While the law increases the school’s ability to police cyberbullying, this article focuses on a new tool that parents have through the civil court system – the ability to obtain an injunction and protective order to stop cyberbullying.

Recently enacted Chapter 129A of the Texas Civil Practices and Remedies Code details the available relief to those that are 18 and under, and the process for obtaining it.  Under the law, Cyberbullying is defined as any activity that “exploits an imbalance of power” and involves any type of bullying through any type of communication device (cell phone, computer, etc.) that 1) places a student in reasonable fear of harm to the student or the student’s property; and/or 2) is severe, persistent, or pervasive enough to be intimidating, threatening or abusive; and/or 3) materially and substantially disrupts the educational process or the orderly operation of a school or classroom; and/or 4) infringes on the rights of the victim at school. 

If you believe your child is the victim of cyberbullying, the new law gives you the power to file a petition (a lawsuit) seeking an injunction (a court order) that stops the cyberbullying, giving the courts a great deal of discretion to define what activities the bully must refrain from.   The Texas Supreme Court has issued a form to be used to file for the injunction: https://www.txcourts.gov/media/1455993/sworn-application-to-stop-cyberbullying.pdf. 

It’s important to note that not only does the law apply to the bully but the court has discretion to also order the parents or guardians of the bully to take reasonable steps to prevent their child from future bullying.  What those “reasonable steps” end up being appears to be left largely to the trial court to define.

Once the petition is filed, the court will have the discretion to sign an immediate temporary restraining order that will be served on the purported bully and their parents.  Within a few weeks, after the bully and parents are given notice of the action, a hearing will be set where the court will hear evidence as to whether the temporary order needs to be made more permanent. 

Many will ask: If the court signs an order, what does that piece of paper really stop?  This is a fair question, because one can easily imagine the teen bully may not want to respect the order of a court.  However, once there is a court order, the court gets the power to enforce the order and punish those that violate it with contempt orders that can result in fines and even criminal prosecution.   

Again, note that the law applies to parents of bullies also, which means if the bullying continues after the issuance of an injunction, the parent(s) could also face potential fines or contempt charges. 

Is David’s law perfect? In my opinion – No, but I’ve yet to see a law that is.  The law still puts the bulk of the work on the parent(s) or guardian of the victim to seek protection on their child’s behalf, and as with any new law, it’s unclear how courts are going to approach it when the cases are filed and judges are given the opportunity to define and enforce the orders they issue.  However, the law is a tool to utilize to try and stop a very prevalent and growing issue, which is can be just as damaging as physical bullying (assault). 

The hope would be that since parents are included as potential Defendants, once the temporary order is issued that the bullying can be brought under control by the bully’s parent(s) who may well not even know what their child is up to online.  However, if it continues and there is a violation of a court order, both parent and child could face fines and criminal prosecution. 

As the school year approaches, I suggest that all parents discuss cyberbullying with their child – as both a potential victim and offender.   The laws are slowly catching up to technology and what teens and children used to get away with online may no longer be tolerated. Cyberbullies need to know that there are consequences for their actions and Texas is enacting laws to cease these types of offenses.

Most importantly, victims must not conceal what is happening, and immediately inform their parents of any rumors, online stalking, threats, etc. so that the victim of this intentional harm can initiate protection under Texas law. 

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