I have mixed feelings about using shame as a force for change.

Calling out bad behavior so that abuse, lies, and harm comes to light is important. We live in a new world where it is almost impossible to cover things up or pretend it doesn’t exist.

But there is a line between speaking up and destroying someone.

Online shaming has been used very effectively to make companies do things they would not have done even a few years ago. Some recent examples are Radium One fired its CEO after he pled guilty to domestic violence charges, then American Apparel fired its CEO and Tinder demoted its CEO after claims of sexual harassment.

I’m okay with this. These people should not be running a company where others work.

Has it ruined their lives? Probably, maybe. I’m not sure.

Did they deserve it? Probably. Maybe. I’m not sure.

Is the consequence disproportional to what happened? Maybe. I’m not sure.

That’s the trouble. We readers and observers don’t know the whole story. We are quick to judge, condemn, shun, and move on with our lives. But only after retweeting and posting a snarky or sanctimonious comment.

Before you criticize someone, you should walk a mile in their shoes. That way when you criticize them, you are a mile away from them and you have their shoes. – Jack Handey

If you don’t understand how damaging shame can be to a human being, please listen to Brené Brown’s talk on Listening to Shame.

If you don’t understand how quickly a thoughtless comment can turn into an angry mob, read this powerful NY Times piece on how a glib tweet blew up and ruined a writer’s life and career.

If you don’t understand how you can lose your job over a tweet, here are some examples where it happened. Some of the comments were related to work, others were unpopular or discriminatory personal opinions.

Recently, Monica Lewinsky gave a Ted Talk on the Price of Shame. It was a brave thing to do. Even after 17 years, she was shaky, chose her clothing carefully so that no one could ever say she looked sexy, and smiled even though her words described pain and emotional devastation.

She asked the audience: How many of you did something stupid when you were 22? Everyone did. We all have.

“I fell in love with my boss,” she said.

Hell, I’ve had sex with bosses I didn’t even like.

And don’t even get me started on whether there can be genuine consent in these kinds of power dynamics. If the most powerful man in the world gives you personal attention, thinks you’re cute, and wants a blow-job, can you really say no? When I was 22, I couldn’t have. (See above.)

I have moved on. Yet, Lewinsky is in her 40’s and is still suffering from the public humiliation, judgment, and name calling. She’s had tremendous difficulty finding work, having relationships, and living with herself.

The other person involved in that workplace affair also had a difficult time. But he had the resources, connections, and sophistication to handle it and recover. He also had a penis. We just don’t slut-shame men. (Anthony Weiner doesn’t count.)

Lewinsky is right. She has suffered enough, and it has been way too much.

Yet the law is slow to catch up to the damage and problems that can be inflicted in minutes on the internet, often without inquiry into the facts or consideration of the consequences.

Legal Issues in Online Shaming

There are some laws that potentially apply to online shaming. Many are an imperfect fit to reality, and some are a stretch. This is because law has always been designed to apply to people, places, and things. The internet is none of these. The internet is infinite, does not belong to anyone, and does not exist in a place. You can’t hold it or even control it. So traditional legal principles can be difficult to apply.

Defamation – Saying damaging and untrue things about someone. It does not apply to public figures though.

Misuse of Name and Likeness — using someone’s picture, name or identity for commercial purposes.

(There is more on defamation and misuse of name or likeness in Blogging Law I.)

Intentional Infliction of Emotional Distress – this is a common law claim that applies when someone does something severe and outrageous that is “beyond the bounds of common decency.”  Calling someone an asshole is not enough. Promoting a mob to harass and stalk someone as they get off an airplane is closer, much closer.

Criminal laws on Cyber-stalking and Cyber-harassment –  State and federal laws makes it a crime when online harassment rises to the level of a direct threat to harm someone physically. However, it’s more difficult to draft a criminal law that governs hurting someone’s feelings because of our Constitutional rights to free speech. Also there is a general principle imbued in our legal system that sticks and stones cause more harm that name calling. It may be time to change that. Here are some of the states who are working to define and outlaw cyberbullying.

Discrimination Laws –both State and Federal EEO laws make it illegal to harass someone based on a protected class. But these laws only apply when there is an employment or other covered business relationship. Here is a list of the applicable federal laws.

Copyright laws can be used when someone posts an image or text when the copyright is owned by the victim or a third party.

Civil Harassment laws –Some states like California also have civil harassment laws that cover harassing conduct through digital or electronic means. Under the  California civil harassment statute, you can get an injunction, but not money damages.

Cyberbullying at School – many states are passing laws that allow schools to discipline or suspend students who bully others through electronic means.

For example, California’s Education Code § 48900(r)(2) allows a student to be suspended or recommended for expulsion if they are found to have engaged in the act of “bullying” through (among other means) an “electronic act.” “Electronic act” includes “a message, text, sound, or image, or a post on a social network Internet Web site, by means of an electronic device,” which includes any phone computer or mobile device.

The problem with using a legal remedy to address online shaming or harassment is that it takes a very long time, is expensive, and it keeps the victim stuck in the pain and emotional distress for the entire lawsuit.

The good part about a lawsuit involving the internet is that the evidence is always preserved somewhere and you can get it. There is very little he-said-she-said involving digital communications because the record is all there.

Other Considerations

Call out the behavior, not the person. It is important to speak out when there is abuse or injustice. Raise your voice and keyboard. But avoid personal attacks and name calling.

Don’t post anything after 10 pm or two drinks, whichever comes first.  It’s just too easy to take out your frustration and blast someone you don’t know for something you don’t understand because you feel cranky, annoyed, pissed, tired or you’re drunk. Don’t.

Consider the consequences. It doesn’t matter what your privacy settings are. If one person can see it, potentially anyone can. Everything you do online is public. So if you are not comfortable with your post being seen by people you don’t know and copied and shared, don’t post.

Be kind.  If you say nice things, encourage others, support ideas and projects, and add thoughtful comments and ideas to the discussion, people remember. It’s what works. And it won’t hurt you. If you are a mean, critical, gossipy, self-absorbed, snotty, rotten weasel, people also remember. And it will be there forever to haunt you.

If this is too much to remember, just stick with the last one: Be kind.

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