Internet Harassment in the Workplace: Civil and Criminal Legal Actions Possible

Internet harassment is a form of conduct. It may take place on a workplace computer or on an augmented realty game. More specifically, internet conduct includes posting threats, obscene images, as well as internet communications via text, messaging, computer or email, which conveys harmful or false information on social media sites.

November 15, 2022 New Jersey Law Journal

By Jonathan Bick | Jonathan Bick is counsel at Brach Eichler in Roseland, and chairman of the firm’s patent, intellectual property and information technology group. He is also an adjunct professor at Pace and Rutgers law schools.

Harassment is understood to be a repeated pattern of behavior intended to scare, harm, anger or shame a targeted individual. Internet harassment involves these actions using digital technologies such as social media platforms, email or messaging services, gaming platforms or cellphone communication.

Internet harassment normally has six forms. These includes hate speech, which consist of damaging or threatening content directed toward aspects of identity such as race, religion, or gender identity; sexual harassment that relates to unwelcome or unauthorized behavior that is sexual in nature, including publishing private images; revenge porn, which includes posting explicit or nude photos of a former partner online without their consent; cyberstalking, which is repeated internet behavior that is intended to cause emotional stress and fear of physical harm; doxing is revealing another’s private information on the internet for public consumption; and impersonation, which is simply identity theft by participating on the internet as another.

Internet harassment also includes “social media harassment.” Social media harassment includes internet bullying trolling and flaming (the use of hostile language online, including swearing, insults and otherwise offensive language).

While internet harassment has been on the web since the 1990s as affordable personal computers become more common. As businesses expand their use of augmented reality games for the purpose of meeting and recruitment, internet harassment has become more prominent, particularly workplace sexual harassment.

Initially, internet harassment was limited to public chatrooms and private messaging platforms. As the internet communication, broadcasting and publication options have expanded, together with the public perception that the internet provides anonymity, has resulted in a dramatic increase in Internet harassment.Internet workplace harassment is not limited to sexual harassment. Cyberbullying in the workplace is increasingly common. Cyberbullying is accomplished through internet bulletin boards, text messaging, as well as social media platform.

Most often, internet harassment involving social media is used to disseminate rumors, usually by posting online disparaging remarks about the subject. Said negative messages are sent directly to the person to be harmed. Alternatively, internet harassment may be implemented by attempting to impersonate the victim electronically by delivering a contentious message designed to cause others to react badly to the victim.

Action options include technical, legal, business and alternatives. Technical solutions include automated systems that flag posts for signs of harassing language. Such systems identify content with all-capital letters, repetitive phrases and certain key words. Upon identification the system institutes a short delay before users can respond to posts, giving them a chance to cool off.

Both criminal and civil legal actions are possible. From a criminal perspective reporting the bad act to the police will initiate a criminal legal action. When doing so, the police report should include all documentation of the cyber-harassment or cyberstalking, such as any evidence of the perpetrator’s identity. 18 U.S. Code §2261A prohibits the federal crime of stalking and has been amended to include actions taken online to harass, injure, harm or intimidate a person. State statutes allow tort and criminal actionable options.

In the event the perpetrator’s identity is known, a civil action could be initiated by filing a restraining order. A “John Doe/Jane Doe” filing should be used when the identity of the bad actor is unknown. The cause of action is most likely to be for defamation.

Internet harassment may arise when internet video game users communicate with each other online while seated at their Xbox or PlayStation consoles. The Anti-Defamation League reported last year, that 60% of children experienced some form of harassment while playing internet games, as well as reporting that high levels of internet harassment was experienced by adult Internet gamers.

When internet gaming harassment arises, technological amelioration options are available. All major internet games provide, including Xbox (Microsoft) and PlayStation (Sony), terms of use agreements which prohibit internet gaming harassment. These firm have procedures detailing how to file complaints and report incidents of online harassment. Such report typically results in blocking the bad actor.

As technology has expanded the boundaries of the employment relationship beyond the traditional physical workplace, employer liability for unlawful conduct related to the workplace has also expanded. For example, an employee using a virtual platform for training purposes persistently makes offensive and harassing or derogatory statements to a fellow trainee may give rise to an actionable complaint.

In the event the harasser continues the harassment, outside of the virtual workplace, by sending the employee unwelcomed offensive emails and text messages, the failure by the employer to take action will most certainly result in an actionable complaint, unless the employer takes several actions beginning with the training supervisor’s obligation to report the internet harassment to the appropriate human resources department and support the investigation of the complaint.

In any case, even if the electronic communications is determined to occur outside of the workplace, the employer may be liable due to the harassment that occurred in the virtual workplace during training. To the extent the employer fails to investigate the harasser’s behavior and promptly ameliorate the harassment, the employer will be deprived of various defenses.

Employers who place employees in virtual worlds, are responsible for ensuring that their employees are secure and not subject to internet harassment. As a result, employers should update their handbooks and policies to incorporate language related to the use of internet training.

Internet harassment may be subject to both civil and criminal prosecution. More specifically, in the event a civil protection order fails to stop the harassment, new criminal charges may be brought.

NJ Statute 2C:33-4 addresses internet harassment. More specifically, harassment arises when a person “makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm.”

Harassment charges are usually tried in municipal courts and convictions are deemed to be a petty disorderly person’s offense. Harassment penalties can result in up to 30 days in jail and a $500 fine.

In criminal court, cyberbullying is commonly charged with cyber-harassment (NJ 2C:33-4.1) or stalking (NJ Stat 2C:12-10). New Jersey internet harassment contains many of the same elements as harassment. If a person threatens someone or knowingly sends or requests obscene material through electronic communication, it is in most cases a fourth-degree crime. If the person is 21 or older and impersonates a minor when cyber-harassing a minor, it is elevated to a third-degree crime.

A fourth-degree cyber harassment conviction can result in up to 18 months in jail and a fine of $10,000, and a third-degree conviction could mean up to five years in jail and a $15,000 fine.