Bullying among kids and teenagers has existed since, well, forever. Cyberbullying, “the intentional and repeated harm inflicted through the use of computers, cell phones, and other electronic devices,” however, is a somewhat newer development in the world of bullying. With the rise of social media, texting, apps, and more, cyberbullying has increased, as have the laws aiming to punish it.
North Carolina has attempted to address cyberbullying in a few ways, with varying degrees of effectiveness. Here, we discuss those ways, as well as the penalties and possible defenses to cyberbullying charges in North Carolina.
Stalking Statute Applied to Cyberbullying Crimes
North Carolina’s stalking law (North Carolina G.S. § 14-277.3A) does not specifically address cyberbullying, but a person can be charged for stalking under this law if they harass another person using electronic means (i.e., cyberbullying).
If a person harasses another on more than one occasion, knowing that such conduct would cause a reasonable person to fear for his safety or suffer emotional distress, the aggressor can be charged with stalking. The statute defines harassment as knowing conduct that torments, terrorizes, or terrifies a person and that serves no legitimate purpose. “Conduct” includes “electronic mail messages or other electronic transmissions.”
Cyberbullying/stalking under this statute is a Class A1 misdemeanor for first-time offenders, a Class F felony for those previously convicted of stalking, and a Class H felony for those with a court order prohibiting such conduct.
In addition to the stalking statute, North Carolina enacted a specific cyberbullying law, North Carolina G.S. § 14-458.1. This law directly addresses cyberbullying and criminalizes using a computer or computer network to engage in activities such as posing as a minor, building a fake profile or website, or posting images of a minor, all with the intent to intimidate or torment a minor or their parents.
Anyone under 18-years-old convicted of cyberbullying under this statute is guilty of a Class 1 misdemeanor, while those over 18-years-old would be guilty of a Class 2 misdemeanor.
This statute, however, and whether a defendant would be charged or convicted under it, comes with a very large caveat. The North Carolina Supreme Court ruled in a 2016 case that one section of the statute, in particular, was unconstitutional because it violated the First Amendment of the U.S. Constitution. Specifically, it held that the statute was too broad and violated free speech.
The statute is still on the books in North Carolina, but it remains unclear how prosecutions will proceed.
Possible Defenses to Cyberbullying
Defenses to a cyberbullying charge will vary depending on what statute the crime was charged under. For a stalking charge, a possible defense is to show that the victim’s fear was unreasonable.
For a charge under the cyberbullying statute, a strong defense would be centered around the First Amendment and free speech. There is a fine line between speech protected by the First Amendment and threatening speech, which is not necessarily protected. As the North Carolina Supreme Court has already shown, it is unwilling to allow a conviction for cyberbullying to stand when such conviction would violate a person’s right to free speech.
If you have been charged with a cyberbullying crime, contact us for a free consultation.