THE BE
ING
www. NYLJ.com
Volume 245—NO. 27
Outside Counsel
Cyberbullying and Intentional
Infliction of Emotional Distress
T
he ease by which information is
disseminated through current internet and
social networking technology provides
tremendous benefits for society’s thirst for
immediate and comprehensive knowledge
of events as they occur. This technology may
also, when abused, magnify and enhance the
deleterious effects of inappropriate conduct
and disclosures. A recent New York Times article
eloquently described the potential harm of this
developing phenomenon by suggesting that the
lawlessness of the Internet, its potential for casual,
breathtaking cruelty, and its capacity to cloak a
bully’s identity, all present slippery new challenges
to this transitional generation.1
Cyberbullying typically takes place when
at least one individual uses technology to
harm or threaten another. Some conduct has
become so commonplace that a whole new
parlance has developed to describe a variety of
cyberconduct. The conduct may take the form of
“cyberstalking” (following victims when they go
online), “impersonation” (hacking into a victim’s
computer or creating fictitious profiles including
pretending to be the victim, signing the victim up
for e-mail lists such as junk mail or pornography, or
performing illegal or immoral acts in the name of
the victim), “denigrating” or “dissing” (spreading
untrue gossip or rumors about a person), “sending
malicious code” (forwarding the victim a computer
virus), and “outing” (sharing intimate information
about the victim with others without the victim’s
consent).2
Extreme cyberbullying can lead to actions
seeking civil redress based on the tort of intentional
infliction of emotional distress and even criminal
prosecution. In Kaisman v. Fernandez,3 it was
alleged that defendants caused plaintiff’s name
to be improperly linked to pornographic websites
on certain Internet search results. In an illustrious
case in Missouri, the mother of a 13-year-old
girl, who did not get along with another 13-year-
old girl named Megan Meier, set up a fictitious
social network profile of an actual 16-year-old
boy, contacted and initially flirted with Megan,
but ultimately told her that “he” no longer liked
her and that the world would be a better place
Andrew S. Kaufman is a partner in Kaufman Borgeest
& Ryan’s personal injury practice. Betsy D. Baydala is an
associate in the firm’s cyber law practice.
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Andrew S. Betsy D.
Kaufman Baydala
without her. Thereafter, Megan committed suicide
and criminal prosecution against the mother of
the other girl ensued.
Many states have passed legislation relating
to cyberbullying, but for the most part, this
legislation relates to criminal penalties or
prohibitions concerning school-related activities.
This article will examine how civil theories and
in particular the tort of intentional infliction of
emotional distress may apply in cyberbullying
situations.
Cyberbullying is certainly offensive and
at times tortious, but does not readily
lend itself to analysis under traditional
negligence, assault or even defamation
theories.
The Rutgers Case
Tyler Clementi and Dharun Ravi were freshmen
roommates at Rutgers University. On Sept. 19,
2010, Mr. Clementi asked his roommate if he could
have their room to himself until midnight. During
that time, Mr. Ravi went to his classmate, Molly
Wei’s room and tweeted that he turned on his
surreptitiously planted webcam and watched Mr.
Clementi “making out with a dude.” Numerous
media sources have alleged that Mr. Ravi, with Ms.
Wei at his side, streamed this encounter live on
the Internet. It is also believed that Mr. Clementi
learned of his roommate’s tweet and webcam. The
episode quickly became the subject of dormitory
gossip. On Sept. 21, 2010, Mr. Ravi tweeted about a
second attempt to secretly broadcast Mr. Clementi
that evening on iChat.
The next day, Mr. Clementi killed himself. Mr.
wednesday, February 9, 2011
Expert Analysis
Ravi and Ms. Wei have since been charged with
various counts of invasion of privacy under New
Jersey criminal law,4 making it a crime to observe
(fourth degree), or record or disclose images of
(third degree) another person’s sexual contact
without the consent of the participant.5 This case
highlights an unfortunately extreme, but growing
trend of cyberbullying. In New York, criminal
prosecution of such an event would fall under
the aggravated harassment or coercion sections of
the penal law.6 Prosecution is also possible under
the manslaughter section of the penal law where
one disregards a substantial and unjustifiable risk
that death will occur.7
Not Traditional Negligence
Cyberbullying is certainly offensive and at
times tortious, but does not readily lend itself to
analysis under traditional negligence, assault or
even defamation theories. Most commonly, redress
has been sought under an intentional infliction of
emotional distress theory. In Fischer v. Maloney,8
the New York Court of Appeals adopted the tort
of intentional infliction of emotional distress from
the Second Restatement of Torts, which reads:
One who by extreme and outrageous conduct
intentionally or recklessly causes severe
emotional distress to another is subject to
liability for such emotional distress.9
The elements of a prima facia case for this
tort were further refined in Howell v. New York
Post Co., Inc.,10 a case involving a photo of the
controversial Hedda Nussbaum at Four Winds
psychiatric hospital that also included an image
of the alleged victim, a fellow psychiatric patient
at Four Winds. In order to impose liability for
intentional infliction of emotional distress, four
elements must be satisfied.
First, the conduct complained of must be
“so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.”11
Second, there must be intent to cause or
disregard of a substantial probability of causing
severe emotional distress.12 Third, there must be
a causal connection between the conduct and
the injury. Fourth, the plaintiff must actually
suffer severe emotional distress.
There is no proscribed conduct necessary to
impose liability and, thus, the cases themselves
recognize that little guidance is provided and

the analysis is performed by a court and/or jury
after the fact. The requirements of extreme and
outrageous conduct, coupled with actual and
genuine distress, were felt by the courts to be
a sufficient filter to deter frivolous claims. The
Howell court noted that even if the wrongdoer
acts within his legal right, such as in firing
someone for whom cause to fire exists, if the
wrongdoer’s deliberate reprehensible conduct,
such as hurling insults, threats or vituperative
epithets, caused severe emotional distress, there
is support for a claim for intentional infliction
of emotional distress. 13 As such, the tort is
described as limitless as the human capacity
for cruelty.14
Although the requirements of this tort are
“rigorous and difficult to satisfy,”15 based on
what is known about the Rutgers case, the prima
facia elements of the tort seem to be satisfied.
Certainly Mr. Ravi’s conduct was outrageous.
Mr. Ravi deliberately turned on his webcam,
which fed real time images to the computer,
watched his roommate’s private intimacies and
broadcasted the images for others on the Web
to see. As Rutgers University President, Richard
L. McCormick, stated, “If the charges are true,
these actions gravely violate the university’s
standards of decency and humanity.”16
In the Howell case, although the photograph
of Ms. Nussbaum and the alleged victim
was obtained via an illegal trespass by the
photographer, the court felt that the illegal
manner in which the photograph was obtained
was not sufficiently egregious to rise to the
level of outrageous and extreme. Thus, the
criminal aspect of Mr. Ravi’s conduct may not
in and of itself be sufficient to characterize
the conduct as outrageous and extreme, but
other instances of Mr. Ravi’s inappropriate
comments or conduct toward Mr. Clementi,
including tweeting his intention to rebroadcast
Mr. Clementi, might constitute a pattern that
elevated Mr. Ravi’s conduct to the extreme and
outrageous level.17
Moreover, the manner in which the images
were obtained, through a surreptitiously
placed webcam, and the relationship between
the subject and the “broadcaster” seem to
support the egregious nature of Mr. Ravi’s
conduct. On the other hand, it is not clear
whether Ms. Wei’s conduct in either passively
watching or encouraging the conduct was
sufficiently outrageous or even if Ms. Wei
facilitated Mr. Ravi’s actions.
At a minimum, Mr. Ravi acted in utter
disregard of the substantial probability that
Mr. Clementi would suffer severe emotional
distress. He used modern technology (webcam)
and social communication capabilities (Twitter)
to instantly disseminate his roommate’s private
intimacies online, both of which Mr. Clementi
would have easily discovered.
Three days after Mr. Ravi apparently streamed
Mr. Clementi’s intimate moment online and the
day after Mr. Ravi tweeted that he intended to
broadcast Mr. Clementi again, Mr. Clementi
committed suicide. This time frame clearly
indicates a causal connection between Mr.
Ravi’s outrageous conduct and Mr. Clementi’s
severe emotional distress, which resulted in Mr.
Clementi taking his own life. The close timing
of the suicide to the event not only suggests
causation, but also implies severe emotional
distress.
Right to Privacy
New York pioneered the nation’s first statutory
civil (as opposed to criminal) right to privacy
by prohibiting the use of a living person’s name,
portrait or picture for advertisement or trade
purposes without prior written consent.18 Since
then, privacy torts have emerged in other states,
such as “unreasonable publicity given to another’s
private life” and “unreasonable intrusion upon
seclusion.”19
Unless and until the legislature
addresses tortious cyberbullying
directly and provides for a private
right of action, it would appear that
the heretofore rarely invoked tort of
intentional infliction of emotional
distress will likely be employed.
While most states’ privacy rights are derived
from case law, New York’s privacy laws are
governed exclusively by Sections 50 and 51 of the
Civil Rights Law.20 In New York, use of a person’s
name, portrait or picture for “advertising” or
“trade” purposes without prior written consent
is prohibited. As such, this statute is tailored to
limiting commercial use of personal information
and images. Since Mr. Ravi did not broadcast Mr.
Clementi’s private moments for “advertisement”
or “trade” purposes, there would be no applicable
right of action based upon a privacy tort in New
York.
Conclusion
More traditional defamation theories including
slander and libel are, of course, available for tortious
conduct if the circumstances are appropriate and
defamatory material is disseminated or published
via a social network or the Internet without
consent.21 On occasion, the tortious statements are
not necessarily published or widely disseminated to
cause harm, but are specifically aimed at inflicting
distress on a particular target based on the content
of the communication itself, as seen in the mother’s
postings in the Megan Meier case.
Unless and until the legislature addresses
tortious cyberbullying directly and provides for
a private right of action, it would appear that
the heretofore rarely invoked tort of intentional
infliction of emotional distress will likely be
employed. With the expansion of social networks
and the Internet, we may witness a dramatic
increase in claims utilizing this theory of recovery
as well as the development of a substantial judicial
gloss based on increased usage.
•••••••••••••••••••••••••••••
1. Hoffman, J, “As Bullies Go Digital, Parents Play Catch-Up,”
The New York Times, Dec. 4, 2010.
2. Frey, D, “Better Laws Are Needed to Prosecute
wednesday, February 9, 2011
Cyberbullies,” NYLJ, Oct. 13, 2009. See also, the New York
State Criminal Justice Website on Cyberbullying at http://
criminaljustice.state.ny.us/missing/i_saftey/cyberbullying.
htm
3. Index No. 114829/07 (N.Y. Co. Sup. Ct. March 14, 2008).
4. Foderaro, SW, “Private Moment Made Public, Then a Fatal
Jump.” The New York Times, Sept. 29, 2010.
5. New Jersey Criminal Law, 2C: 14-9. Invasion of Privacy.
6. New York Penal §§240.30 and 135.60.
7. New York Penal §125.15.
8. Fischer v. Maloney, 43 N.Y.2d 553, 402 N.Y.S.2d 991
(1978).
9. Restatement [Second] of Torts §46 [1] [1965]. A cause of
action for intentional infliction of emotional distress accrues
at the time the outrageous act was committed and is governed
by a one-year Statute of Limitations. See Foley v. Mobil Chem.
Co., 214 A.D.2d 1003, 626 N.Y.S.2d 906 (4th Dept. 1995).
10. 81 N.Y.2d 115, 612 N.E.2d 699 (1993).
11. Murphy v. American Home Products Corp., 58 N.Y.2d 293,
448 N.E.2d 86 (1983).
12. The tort of negligent infliction of emotional distress
requires the same level of extreme and outrageous conduct
suggesting the wrongdoer’s intent or reckless disregard and,
consequently, has largely been subsumed by the tort of
intentional infliction of emotional distress. Acquista v. New
York Life Ins. Co., 285 A.D.2d 73, 730 A.Y.S.2d 272 (N.Y.App.Div.
2001).
13. See Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 612
N.E.2d 699 (1993).
14. Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 612
N.E.2d 699 (1993).
15. In Howell v. New York Post Co., Inc., the Court of Appeals
stated that the intentional infliction of emotional distress claims
considered by the Court failed because the alleged conduct
was not sufficiently outrageous. 81 N.Y.2d 115, 612 N.E.2d 699
(1993).
16. Foderaro, SW, “Private Moment Made Public, Then a
Fatal Jump.” The New York Times, Sept. 29, 2010.
17. 164 Mulberry Street Corp. v. Columbia University, 4
A.D.3d 49 (1st Dept. 2004).
18. L 1903, ch 132 (originally enacted); now codified as New
York Civil Rights Law §§50 and 51.
19. Restatement [Second] of Torts §§652D and 652B.
20. Section 50 provides for criminal penalties and section
51 provides for a private right of action for damages and
injunctive relief.
21. Lesser v. KarenKooper.com, Index No. 104005/07 (N.Y.Co.
Sup.Ct. Jan. 16, 2008).
Reprinted with permission from the February 9, 2011 edition of the NEW YORK LAW
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