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Hastings Communications and Entertainment Law Journal

Abstract

In light of fettle attempts by state legislatures to subdue the growing cyberbullying epidemic, the time has come to create a civil duty upon those who can control the problem-web hosts and webservers. While the general "foreseeable plaintiff' duty set forth by then-Chief Judge Cardozo in PaIsgraf v. Long Island Railroad Co. has controlled the duty of care owed to the person of another for the last century, Judge Andrews' dissent may hold the key to unlock this new societal problem: "Every one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. ... Not only is he wronged to whom harm, might reasonably be expected to result, but he also who is in fact injured, even if he be outside what would generally be thought the danger zone." By imposing a duty to prevent harm. upon web hosts and webservers where cyberbullying harm continues to occur-mainly Facebook-the law is able to adapt to the new source of harm to address the growing, unsolved problem.

This article explores the depths of the current liability imposed upon web hosts and webservers, while advancing that the general tort duty owed to third parties needs to be expanded to include the aforementioned group. By expanding a duty to prevent cyberbullying harm upon those who can actthose who have the constitutional ability to control speech-web hosts and webservers are best positioned to cure the surmounting issue of online abuse upon the person of another. At the end, by proactively monitoring, and when necessary, chilling the private speech of those who inflict the greatest blows, online hosts such as Facebook not only have the moral duty, but upon the creation of a legal duty, the obligation to address the cyberbullying problem. Thus, the cyberbullying issue may be resolved by revisiting Andrews' dissenting view that everyone owes a duty to the person of another to prevent harm from a third person, including Facebook.

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