The Common Scold

The Common Scold is named after a cause of action that originated in Pilgrim days, when meddlesome, argumentative, opinionated women who displeased the Puritan elders were punished by a brisk dunk in the local pond. Believe it or not, the tort lasted until 1972, when State v. Palendrano, 120 N.J. Super. 336, 293 A.2d 747 (N.J.Super.L., Jul 13, 1972) pretty much put it to rest. But the thought of those feisty women, not afraid of a little cold water, has always cheered me up and inspired me. I first used the moniker as the name of my humor column at the University of San Francisco School of Law many moons ago, and revive it now for this blawg!

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Sticks & Stones

30463134 A New York court has rejected a suit alleging online harassment, holding that the state's laws "do not recognize cyber or internet bullying as a cognizable tort action." Finkel v. Dauber was decided in July, in the Supreme Court of Nassau County; plaintiff Denise Finkel was allegedly the subject of "extremely unpleasant" Facebook messages.

In the New York Law Journal, Stephen Kramarsky, a member of Dewey Pegno & Kramarsky, analyzes the case and recent efforts to create legislation to protect teens in the light of recent suicides related to bullying.

"Much of the public discourse in online communities and social media -- whether private blogs, websites like Facebook or MySpace or services like Twitter -- consists of button pushing and trash-talk, good natured or otherwise. Context, in such situations, can be extremely important and broad legislation, while satisfying in the wake of tragedies ... is not always the best solution," says Kramarsky.

In the absence of a contextual analysis -- present in New York's defamation law, but missing from many of the proposed and existing cyber-bullying laws -- this kind of communication, familiar to anyone who has ever been in a 'flame war,' could become a crime," he says. "As a policy matter, it is best to avoid criminalizing what may be a "social norm" in a given context simply because legislators are disconnected from that context. The rules of discourse on Facebook are not the same as those on the Senate floor."

But, he concludes, "some regulation of electronic bullying and harassment is arguably in order -- even if it is only an update of existing law to include electronic communications -- but in any such regulation discretion must be the watchword. As the Finkel court correctly notes, in this area 'context is key."

September 24, 2010 in Breaking News | Permalink


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