The Basics:Cyberbullying can be defined as ‘[the] activity of using the internet to harm or frighten another person, especially by sending them unpleasant messages’ (Cambridge Dictionary). Its prevalence has been greatly exasperated due to the rise of social media platforms [hereinafter, SMPs], but was unfortunately not properly addressed until three internationally reported tragedies struck in the early 2010s. During this time, three teen suicides made international news after it became public that each of the youth had been cyberbullied leading up to their deaths (for more information, you can visit the publicised stories of Tyler Clementi, Amanda Todd, and Rebecca Sedwick, respectively).Following this rise in awareness, there has been an outcry for SMPs to be held liable for the cyberbullying that occurs on their platform, via intermediary liability (Isselin).Current EU Legislation:When the e-Commerce Directive was adopted in 2000, it provided online intermediaries with a general liability exemption for illegal content found on their platforms. However, this exemption only applies if the SMP (the intermediary) is unaware of the content. If they became aware of the content at any time, they are be expected to quickly remove it (Madiega). Alternatively, if they had knowledge about the content, or ought to have known, and have failed to remove it, they may be held liable for any damage it may have caused.It is very important to note that this Directive explicitly references ‘illegal content’ rather than ‘harmful content’. Therefore, any content that may be considered harmful but not illegal, which could potentially include cyberbullying, is not covered by the Directive.This means that the position of cyberbullying and intermediary liability is quite confusing, to say the least. If the cyberbullying content crosses the line of illegality, the SMP may be held liable if they have not removed it in time. However, if the cyberbullying content is legal, just morally wrong, the SMP does not have a legal obligation to remove it, nor could they be held responsible by not removing it. This creates great difficulty for victims or their families when seeking recourse, as this means they would only be able to hold the bully liable, which is not always possible if the bully was acting anonymously (Isselin).As such, there has been call for the Directive to be amended, or a new piece of legislation to be introduced, that will help protect individuals against a wider category of cyberbullying and may result in an SMP being held liable if they don’t remove the bullying upon notice (Madiega).UK Context:Following Brexit, the eCommerce Directive no longer applies, which complicates matters even further (Bickerstaff; O'Driscoll). However, the UK government has committed to introducing laws that will fine SMP if they fail to remove cyberbullying content (Shankleman). Unfortunately, in the 3-years since the UK government has made this announcement, there have been no apparent updates on the matter.Facebook… Doing Good?:During my research, the thing that I found to be the most surprising is actually what links this topic to AI. Since 2020, Facebook has been using AI to help filter through the numerous amount of content on the website (Vincent). The AI moderators are meant to remove any posts that are assumed to be violating the company’s policies on hateful topics such as cyberbullying (Vincent).As these AI moderators are still relatively new, it will take some time to see if they are effective. In the meantime, it is safe to say that this is at least a step in the right direction as it can help a) SMPs in liability claims if the rules do change, as the content should be removed quickly and b) help protect our youth from the traumas of cyberbullying.Sources:Bickerstaff, R, "The end of the EU eCommerce Directive in the UK: Impact on cloud service providers" (2020), Bird&BirdCambridge Dictionary, "cyberbullying" (n.d.) Isselin, M.S., "#StopImmunizing: Why Social Networking Platform Liability is Necessary to Provide Adequate Redress for Victims of Cyberbullying" (2017), Reed SmithMadiega, T, "Reform of the EU liability regime for online intermediaries" (2020), European Parliamentary Research ServiceO'Driscoll, A, "Facebook bullying: How it happens and what to do about it" (2018), Comparitech Shankleman, J, "U.K. Seeks Penalties for Tech Giants to Stop Cyberbullying" (2018), Bloomberg Quint Vincent, J, "Facebook is now using AI to sort content for quicker moderation" (2020), the Verge Further Information: The UK's National Bullying Helpline and eCrime database can be found here: nationalbullyinghelpline.co.uk. If you or anyone you know needs to call the helpline, it is free to call and is available from 9am-5pm. The number is 0300 323 0169.
