On February 16, 2012, the Erie County Legislature voted unanimously to pass a local law prohibiting any person from engaging “in cyber-bullying against any minor or student when such minor or student is located in the County of Erie.” The law is not yet in effect, as it has not been signed by County Executive Mark Poloncarz and filed with the Secretary of State, but its potential for passage raises important questions for educational institutions and other public entities across the county — namely, what the potential reporting roles of school administrators and teachers should be when such incidents occur. It also serves as a reminder for schools and employers in general of the importance of having appropriate policies and programs in place to protect their students or employees and minimize potential liability.

The proposed law defines cyber-bullying as “harassment or bullying accomplished by publishing, communicating or causing a communication to be initiated or displayed through electronic means.” This would include e-mails, text messages, posts on an individual’s blog, or communications through other forms of social media, such as Facebook and Twitter. The law also defines “harassment or bullying” as:

A course of conduct or repeated creation and/or the dissemination of, any intentional written, visual, verbal, or physical act or conduct targeting at a specific other person which is severe, persistent, pervasive or repeated, and serves no legitimate purpose and that a reasonable person under the circumstances would know could result in, and does in fact result in:

(a) Placing such other person in actual or reasonable fear of physical harm to himself or herself, or to a member of such person’s immediate family or a third party which whom such person is acquainted; or

(b) Placing such other person in actual or reasonable fear of damage to the property of such person or to a member of such person’s immediate family or a third party with whom such person is acquainted; or

(c) A substantial detrimental effect on such other person’s physical, mental or emotional health.

It is interesting to note that this proposed local law only prohibits bullying via electronic messaging: it does not prohibit in-person bullying or any other types of bullying that may occur without the use of electronic devices.

Further, the proposed local law does not address the potential role of schools, teachers, and/or parents in reporting instances of cyber-bullying. Although it does not require any specific individual, such as a teacher or administrator, to come forward when they witness an incident of cyber-bullying, the law will not be effective unless individuals report such incidents. As a result, numerous questions are likely to arise when cyber-bullying occurs. If they have not already done so, schools and school districts should take this opportunity to adopt a policy specifically prohibiting cyber-bullying. They should also consider training administrators, faculty and staff in how to handle any incidents of cyber-bullying and develop reporting procedures for any incidents so they may be handled appropriately. Schools may even consider implementing a program that encourages victims of bullying to seek assistance.

The proposed local law prohibits cyber-bullying by any “person,” meaning any natural person or individual; therefore, this law applies if one minor “cyber-bullies” another student. Parents will want to make it very clear to their children that cyber-bullying has many adverse consequences — not the least of which is a potential misdemeanor criminal charge. This may provide an excellent opportunity for families to discuss all of the issues related to safe and courteous use of electronic communication devices, the internet, and social media.

The proposed law does not allow police or any other agency to monitor social media, such as Facebook and Twitter, for potential cyber-bullying. Therefore, individuals, parents, and potentially teachers and/or school administrators will have to come forward to the police when they see or experience an instance of cyber-bullying to make the law effective.

Even so, prosecuting individuals under the law may be difficult. Police will have to determine the user that actually engages in acts of cyber-bullying; this may be difficult if a user’s account is hacked or an individual is posting anonymously on a website or blog. The penalty for violating the proposed law is an unclassified misdemeanor punishable by a fine of up to $1,000 and/or up to one year imprisonment. However, most cases involving children under 18 will likely be handled in Family Court.

Although the proposed local law will not apply to the bullying of an adult, all employers have many legitimate interests in prohibiting such conduct and, therefore, should review their computer use policy to determine if the policy adequately addresses the issue of cyber-bullying. Employers are encouraged to take this opportunity to determine what actions it will take if it learns that its electronic devices have been used to engage in cyber-bullying.

County Executive Poloncarz held a public hearing on the cyber-bullying law March 2. If the County Executive decides to support the law and signs it, it becomes effective once the local law is filed with the Secretary of State. The filing must take place within 20 days after the local law is adopted by the County Executive.

If you have questions about the potential impact of this law, please contact Sean P. Beiter (716.566.5409; sbeiter@goldbergsegalla.com), or another member of the Goldberg Segalla Labor and Employment Practice Group.