A New Method to Address Cyberbullying in the United States: The Application of a Notice-and-Takedown Model as a Restriction on Cyberbullying Speech.

• Author: O'Shea, Brian

TABLE OF CONTENTS I. INTRODUCTION 121 II. THE PROBLEM OF CYBERBULLYING AND THE NEED FOR A LEGAL SOLUTION 123 III. STATE RESPONSES TO CYBERBULLYING AND LEGISLATIVE SHORTCOMINGS 125 A. The United States' Response to Cyberbullying Has Occurred a the State Level at the State Level 126 B. Criticism of State Cyberbullying Responses and the Need for National Action 126 IV. THE RIGHT TO BE FORGOTTEN AS A POTENTIAL RESPONSE TO CYBERBULLYING AND WHY IT LIKELY WILL NOT SURVIVE FIRST AMENDMENT SCRUTINY IN THE UNITED STATES 127 A. The Right to be Forgotten, Criticisms of the Right, and Its Impact on Speech in the E.U. 128 B. The Right to be Forgotten, as Implemented in Europe, Would Face Serious First Amendment Challenges in the United States 129 1. Low-Value Speech Can Be Restricted by the Government with Minimal First Amendment Scrutiny 130 2. Restrictions on Speech That Is Not Low-Value Are Subject to Strict Scrutiny Under the First Amendment 131 C. Due to Its Chilling Effect on the Content of a Wide Range of Speech, the Right to Be Forgotten Is Not Likely to Survive Strict First Amendment Scrutiny in the United States 133 V. POLICYMAKERS SHOULD LOOK TO THE NOTICE-AND-TAKEDOWN PROCEDURES OF THE DIGITAL MILLENNIUM COPYRIGHT ACT, WHICH MAY PROVIDE A CONSTITUTIONAL MEANS FOR RESTRICTING THE CONTENT OF SPEECH 134 A. Background on the DMCA and Its Notice-and-Takedown Provisions 134 B. The Argument That the DMCA's Notice-and-Takedown Procedures Provide for a Potentially Unconstitutional Restriction of Speech 136 VI. APPLICATION OF THE DMCA NOTICE-AND-TAKEDOWN MECHANISM AS AN ALTERNATIVE MODEL TO RESTRICT THE CONTENT OF CYBERBULLYING SPEECH 137 A. The Elements of This Proposed Notice-and-Takedown Mechanism 138 B. Why This Mechanism Is a Constitutional Speech Restriction 139 C. Potential Counterarguments and the Need for Further Scholarship 141 1. Websites Already Have Protections in Place 141 2. The Need for an Appeals Process 142 VII. CONCLUSION 143 I. INTRODUCTION

Ghyslain Raza. His story is one many may not want to remember--but should never forget. One day, while at school in Quebec, Canada, Raza was going about his day like any typical 14-year-old. He had countless things to look forward to: spending time with friends, high school, and enjoying what are supposed to be some of the best years of life. His teenage innocence, however, was about to be ripped away from him far too soon.

As part of a school project, Raza entered a television studio at his school and had someone film him reenacting a lightsaber scene from Star Wars. Raza submitted the seemingly harmless and inconsequential video in his class and then went on with his life. (1)

A year later, the video was posted on YouTube, without Raza's consent, and quickly went "viral." Within days of its posting, the video was well on its way to becoming the most popular Internet video of all time. But rather than enjoying his newfound celebrity, Raza was faced with a massive cyberbullying onslaught from people he did not know. (2) "What I saw was mean. It was violent. People were telling me to commit suicide," Raza said of the video's release. (3) Raza further commented that "no matter how hard I tried to ignore the people telling me to commit suicide, I could not help but feel worthless, like my life was not worth living." (4) Raza was subjected to so much bullying that he lost the few friends he did have, he transferred schools, was diagnosed with depression, and eventually was forced to enter a children's psychiatric facility. (5)

Raza's story is just one case in what has become an alarmingly common phenomenon of online bullying, popularly known as "cyberbullying." Today, almost half of all minors in the United States report being victims of cyberbullying. (6) Between four to twenty-one percent of minors admit to having been perpetrators. (7) While popular websites like Facebook, Instagram, and Twitter all have anti-cyberbullying policies in place, (8) these policies alone are not sufficient. Young people continue to bully each other, often through the posting of images and videos designed to publicly shame or humiliate the subjects. (9) Unlike with words, where the subject may be more covert, the subject of an image or video may be far more visible. The subject of visual content can often be readily identified by observers, creating the potential for more bullying in the virtual and physical worlds. (10) Most disturbing of all, when the content is posted, there is often no way of getting it down from the Internet. (11) For people like Raza (whose video remains readily available online) and other victims, there is no escape.

Due to the Internet's ubiquity, (12) cyberbullying is not going to disappear anytime soon. Any young person, Internet user or not, is in danger of becoming a victim. While there is no obvious or perfect solution to this issue, a 2014 ruling by the European Court of Justice (ECJ) allowing individuals to petition to have certain content removed from the Internet due to a so-called "right to be forgotten." (13) Adopting the ECJ's petition process may change the landscape for those seeking to restrict cyberbullying speech in the United States.

Currently, there is no right to be forgotten in the United States, and the constitutionality of such a right is in some doubt due to its potential to restrict, or chill, free speech. (14) However, there already exists a comparable mechanism in the form of copyright notice-and-takedown procedures, which allows copyright owners to easily remove unauthorized content from the Internet. (15) If policymakers in the United States decide to grant cyberbullying victims a similar remedy, minors, through their guardians, other agents, or even on their own, could easily remove certain embarrassing or malicious content from the Internet.

This Note argues that if policymakers in the United States wish to implement cyberbullying policies similar to the European Union's "right to be forgotten," they should look to the notice-and-takedown provisions of the Digital Millennium Copyright Act (DMCA) as a model. (16) An analogous framework for cyberbullying could enable users to petition providers of online services for the removal of images and videos where the subject can be personally identified, and the content was posted for the purpose of bullying.

Section II of this Note introduces the growing problem of cyberbullying and the need for a legal solution. Section III details the United States' current approach to cyberbullying and criticisms of that approach. Section IV discusses Europe's right to be forgotten as a potential response to cyberbullying, and why the right is not likely to survive First Amendment scrutiny in the United States. Section V discusses the notice-and-takedown procedures of the DMCA and how policymakers could use these procedures as a model for the purpose of restricting cyberbullying speech. Finally, Section VI proposes a notice-and-takedown mechanism based on the DMCA, discusses why the mechanism will likely survive First Amendment scrutiny, and addresses potential counterarguments and the need for future scholarship.

2. THE PROBLEM OF CYBERBULLYING AND THE NEED FOR A LEGAL SOLUTION

   The Internet may be the greatest forum for the exercise of free speech in history. (17) Unlike broadcast or print media, where communication is a one-way street, the Internet facilitates a "true marketplace of ideas" (18) where individuals are able to interact with each other and share content with the rest of the world. (19) It is the "most participatory form of mass speech yet developed." (20) Unfortunately, with all of the benefits that have accompanied the growth of the Internet, there have been several unintended consequences. (21) One of these consequences has been the growth of cyberbullying. (22)

   Cyberbullying occurs "when a child, preteen, or teen is tormented, threatened, harassed, humiliated, embarrassed or otherwise targeted by another child, preteen, or teen using the Internet, interactive and digital technologies, or mobile phones." (23) Cyberbullying, therefore, can occur in a variety of ways and can result in a range of different harms. Moreover, cyberbullying can be conducted through a number of different media forms including emails, online videos, mobile messaging, and posts on social media sites. (24) For example, text messages or images may be shared and distributed among an individual's friends, peers, or people they do not even know. (25) With America's teenagers, the main victims of cyberbullying,, becoming more digitally connected over the last decade, (26) consequentially, cyberbullying has been recognized as a serious public health problem due to the substantial and long-lasting impact it can have on its victims. (27)

   Although a lack of scientific research has prevented a comprehensive understanding of the prevalence of cyberbullying, (28) the available statistics paint a disturbing picture. (29) Since 2015, nationwide, almost twenty-percent of American high school students report having been victims of cyberbullying. (30) Equally as troubling is that between four to twenty-one percent of youths in the same age range have reported being perpetrators of cyberbullying. (31) The problem is so prevalent that, according to a Harvard-directed study conducted at the behest of state attorneys general, "the most frequent threat minors face, both online and offline, is not sexual predators or harmful content, but rather bullying and harassment, most often by peers." (32)

   As observed by one scholar, "[c]yberbullying can be harmful to children in a number of ways, including negatively impacting their health, education, and social lives." (33) It can result in severe psychological harm including depression, anxiety, fear, and low self-esteem. (34) Cyberbullying can also lead to poor academic performance, increased absences from school, or even dropping out of school all together. (35) "In some cases...