Bullying and sexting in social networks: Protecting minors from criminal acts or empowering minors to cope with risky behaviour?

The availability and use of social networking sites creates both opportunities and risks for their young users. This article evaluates the applicability of the current legal framework to (cyber)bullying and sexting, two types of (potentially harmful) behaviour that are increasingly occurring between peers in the social networking environment. The analysis includes a mapping of applicable legislative provisions at the European and national level, an analysis of the Terms of Service of the largest social networking provider, Facebook, and an overview and assessment of self-regulatory initiatives that have been taken by the industry in this area in Europe. The ultimate goal is to identify a number of elements for a comprehensive strategy to ensure that risks of (cyber)bullying and sexting are dealt with in a manner that empowers young users.

"With regard to cyberbullying, the existing legislative provisions are sufficient to address the issue. In the case of sexting, there currently is a mismatch. Sexting should not be criminalised on the basis of child pornography legislation. Policymakers should address questions such as how to define sexting in a future-proof manner, how to distinguish between primary and secondary sexting, and which age (range) to protect. Primary sexting is that minors take pictures of themselves and share these pictures with peers themselves, secondary sexting is when someone forwards or further shares a picture that was sent to him by a person that took a picture of him or herself. Whereas primary sexting can be consensual (unless of course it is the result of coercion), secondary sexting is likely not to be consensual and may have a grave impact on the person in the image. The harm that can result from primary sexting is not that evident. We may even wonder whether the rights to freedom of expression and privacy do not preclude the creation of legislation to address primary sexting as part of the exploration of sexual identity. This finding does not alter the fact that it is of vital importance that minors are aware of the potential consequences of sharing sexually suggestive pictures." (Lievens, 2014, pp. 354, 267-268)