Q: Can victims of cyberbullying seek compensation through the cyberbully’s insurance coverage?
A: It depends on the insurance policy and the nature of the cyberbullying.
Cyberbullying has become a national pastime over the last several years it seems. Cyberbullying can have devastating effects on the victim. These effects can be physical, emotional and reputational. It is the last area, damage to reputation, that is most likely to be covered by insurance.
Defamation of Character Covered by Most Homeowner’s Insurance
In New Mexico, the term “defamation” is used instead of libel and/or slander.
“Defamatory communications are those which tend to expose a person to contempt, to harm the person’s reputation, or to discourage others from associating or dealing with [him] [her].” NMRA, Rule 13-1007.
In fact, it is safe to say that the majority of cyberbullying is slanderous. Cyberbullying often comes with an element of libel or slander. Defamation is not a particularly easy claim to bring. There are a number of factual elements that must be proven to establish defamation. If the elements are all there, then there will be a good chance of succeeding in defamation lawsuit. All the elements are set forth in NMRA, Rule 13-1002. However, these elements can basically be boiled down to the following:
1. The statement(s) are false,
2. The person making the statement(s) knew or should have known they were false,
3. The statement(s) harmed the reputation of the victim.
Assets or Insurance Essential for Financial Recovery for Cyberbullying
As addressed above, defamation is often covered by homeowner’s insurance. Homeowner’s insurance typically has minimum coverage of $100,000.00. It is important to determine whether the homeowner’s policy covers any of the other possible claims related to cyberbullying.
Chances are they are not covered by homeowner’s as homeowner’s insurance policies at least for now typically specifically exclude cyberbullying and similar online intentionally malicious conduct. The bottom line is that in the absence of insurance coverage, the success of collecting on any court verdict in the victim’s favor for intentional infliction of emotional distress or violations of privacy will depend on the assets of the cyberbully.
If the cyberbully has assets, then it might be possible to collect on those assets any court judgment. If the cyberbully works for a company and the cyberbullying emanates from the company’s mission, as with many conspiracy type online platforms or media (online or off), then the victim can sue both the cyberbully and the company for whom he works.
Parental Responsibility for Cyberbullying
A great deal of cyberbullying comes from teenagers living in the homes of their parents. The issue of parental liability can be a little bit more complicated. Homeowner’s insurance will probably, absent an exclusion, cover defamation. However, as above, it will not cover the true harm related to intentional infliction of emotional distress. Getting at the parent’s assets could be an issue as well in New Mexico where there are pretty strict limits on the financial liability of parents for the wrongdoing of their children. But like most things related to personal injury/tort lawsuits, knowledge or acquiescence will likely waive those limits. For instance, in the most outrageous cases, a parent might actually participate in the cyberbullying.
Actual participation by the parent is not required. If the parent knew or should have known of the cyberbullying and did nothing to stop it, they will likely bear full financial responsibility for the harm. For example, if the victim or the victim’s parent report the cyberbullying to the cyberbully’s parent, then there is likely sufficient knowledge and acquiescence if the cyberbullying continues.
Seek Legal Assistancepeson
If you or a loved one is the victim of cyberbullying, it is wise to contact an attorney. These cases are complicated. At a minimum, you will want the cyberbullying to stop before serious harm is done. To do this, a letter from an attorney might suffice. If not, a temporary restraining order may be necessary. Violations of a restraining order can result in very serious consequences for the cyberbully including jail. If the harm is already done and it is too late to prevent, then assuming there is insurance and/or assets, a personal injury lawsuit may be the only way to both stop the abuse and recover financially against the cyberbully.
Collins & Collins, P.C., Attorneys at Law, can be contacted online or by phone at 505.242.5958.