UNDERSTAND IT ALL – What is cyberbullying and what risk are perpetrators at?

Hoshi cyberbullying, complaint against Facebook and Instagram France after the suicide of Lindsay, a 13-year-old schoolgirl, or even an application offered by Roland-Garros for players who are victims of online harassment… The cases have multiplied in recent weeks.

According a study conducted in 2021 by the e-Enfance association, 20% of children between the ages of 6 and 18 have already faced a situation of cyberbullying. Here is a reminder of what cyberbullying is and what is the responsibility of the platforms.

• What is the definition of cyberbullying?

In law, harassment is defined by article 222-33-2-2 of the Penal Code“The act of harassing a person through repeated manifestations or behaviors that have as their object or effect a degradation of their living conditions that produces an alteration of their physical or mental health, will be sanctioned with a sentence of one year in prison and 15,000 euros. fine when these facts have caused total incapacity for work for less than or equal to eight days or have not given rise to any incapacity for work.

The same article specifies: “when the acts have been committed using an online public communication service or through a digital or electronic medium”, the penalty rises to two years in prison and a fine of 30,000 euros.

· What forms can cyberbullying take?

Online bullying can take many forms: intimidation, insults, online teasing or threats, spreading rumors or hacking of accounts and digital identity theft…

Creating a social media discussion topic, group, or page directed at a classmate, posting embarrassing or humiliating photos or videos of the victim, creating a social media discussion group, page, or topic against a person also falls within cyberbullying, as well as the exchange of content of a sexual nature without consent.

The means in which cyberbullying occurs can also be multiple: mobile phones, instant messaging, forums, chats, online games, emails, social networks, photo sharing sites or blogs…

All message formats can be processed, be they posts, comments, videos, image montages… And whether the exchanges are public or private.

· Who is covered by the law?

Cyberbullying can be the work of a single person or carried out “in a herd”; reinforcing the feeling of impunity for the authors of hate speech. However, engaging in a smear campaign against a person, even through a single offensive message, is reprehensible.

The law of August 3, 2018 against sexual and gender violence reinforced the article dedicated to harassment of the Penal Code, cited above, by introducing the notion of “digital attack”. Thus, any person who has participated, even for a single act, with or without consultation, in the collective harassment of a person can be incriminated.

In addition, the fact that the person subjected to cyberbullying has been, for example, convicted by the courts is not a reason to reduce the penalties incurred by the perpetrator of the bullying.

· What are the sanctions?

The sentences imposed differ according to the age of the perpetrator and that of the victim. In all cases, if the perpetrator is a minor, the parents are civilly liable and may be required to compensate the parents of the victim.

If the author is of legal age

If the victim is over fifteen years old, he is exposed to a penalty of up to 2 years in prison and a fine of 30,000 euros. If he is younger, the maximum sentence is then 3 years in prison and a fine of 45,000 euros.

If the author is between 13 and 18 years old

If the victim is over 15 years of age, the maximum penalty is 1 year in prison and a fine of 7,500 euros. If he is younger, the sentence can be increased to 18 months in prison and a fine of 7,500 euros.

If the author is under 13 years of age

Specific rules and measures are applied since the law considers that minors under 13 years of age are not capable of discerning.

· What is the responsibility of social networks?

The responsibility of the intermediaries, that is to say, the hosts and the providers of Internet access, is also engaged if they have been made aware of the published messages and if they have not acted quickly.

The fight against cyberbullying is also based on identifying the perpetrators of online hate speech and therefore partly depends on the cooperation of the platforms, but they do not always collaborate. “We are struggling to get answers,” explains Samuel Comblez.

Last March, Twitter France was judged for failing to help the courts identify the authors of two offensive tweets against an official from the Yvelines prefecture. Twitter France and its CEO at the time, Damien Viel, had relaxed state.

In 2021, Facebook announced that it had stepped up its fight against bullying. The network can thus remove private messages or comments that are harassing based on the context and additional information.

On Instagram, direct message requests that contain offensive language are supposed to be hidden directly and not appear in the main message. An artificial intelligence was launched in 2019 to warn people who want to post abusive messages.

It is possible to report content on each platform and request its removal at TwitterInstagram, TikTok, Facebook or even Snapchat.

In theory, according to the 2004 law, platforms are obliged to keep data that allows the author of illegal comments to be identified and to respond to requests from judicial authorities. The platforms can be prosecuted for “failure to comply with their obligations” (one year in prison and a fine of 250,000 euros).

They have the duty to remove manifestly illegal content as soon as they have been notified and if it is a public message. Illegal content is content related to racial hatred or child pornography, for example. An insult, slander or defamatory comment is not considered illegal.

In practice, the fact that the European headquarters of the platforms is located in Ireland makes it difficult to prosecute because they are companies governed by foreign law. However, the Digital Services Law will allow better cooperation between European countries on this issue.

· What does the government want to change?

In the bill to “secure and protect the digital space”, the Government wants acts of harassment on a social network lead to a ban on access to the platform in question.

The responsibility for banning would be given to the platforms. Thus, social networks could be forced to block the account used, but also to block old accounts and the possibility of creating new ones. The sanction, ordered by a judge, will last six months and up to one year in case of recidivism.

The whole question remains the chosen modus operandi. A blacklist of prohibited users could be drawn up, including their email address. However, with a high risk of circumvention, a few seconds are enough to create a new email address. While blocking via IP address would condemn the entire household instead of the targeted person. A sanction already abandoned at the time of the hadopi.