Insights

In brief – Schools must work to reduce risk of both cyberbullying and litigation

Schools need to respond to advances in technology and be vigilant to minimise cyberbullying. They also need strategies to guard against cyberbullying litigation.

Cyberbullying evolves with children’s use of Facebook, YouTube, mobile phones and laptops

Facebook has 483 million daily users. An hour of video is uploaded onto YouTube every second. Seventy five per cent of 12-17 year olds have mobile phones. Smart phones - phones with internet capacity - account for nearly 50% of all mobile phones in Australia. Wi-Fi is everywhere - often free.

Increasingly, school children are issued laptops by their schools. Ninety six per cent of 12-14 year olds use the internet at home or school. (See Parental involvement in preventing and responding to cyber bullying, Child Family Community Australia (CFCA) Paper No 4, 2012, p2.)

One consequence of the explosive growth in technology has been the rise of cyber bullying. One in five teenagers aged 12-17 have received hateful messages via their mobile phone or through the internet. (See CFCA paper p.4.)

What is cyberbullying?

Cyberbullying is bullying through information and communication technologies and mediums. It can occur during the school day and beyond the school gate. It can happen by email, instant messaging, in chat rooms, by text and on social networking sites.

In schools cyberbullies target the most vulnerable and fragile students - often anonymously and often with a number of cyberbullies acting in a concerted manner.

Convenience and perceived anonymity create cyberbullying epidemic

The reasons for the epidemic of cyberbullying are reasonably clear. An avalanche of technology that facilitates cyberbullying - a few key strokes is all that is required, the perception that anonymity reduces the risk of detection and the fact that face to face confrontation is not required.

Curiously, once detected cyberbullies often state that they did not appreciate the harmful effect of their actions on the victim.

Schools developing cyberbullying policies in response to complaints

Increasingly schools are being required to deal with complaints about cyberbullying which may begin at home or school. It has no boundaries. As a consequence, schools are developing policies to address the appropriate use of technology by students both inside and outside the school.

Many schools have introduced policies which require students to agree to a code of conduct as a pre-condition to being issued with laptop computers by the school. Commonly those codes are not limited to behaviour within the school but are also directed to behaviour outside the school.

Such codes are not necessarily limited to computers and technology issued by the school, but often extend to technology and communication mediums owned by children or their parents - including mobile phones.

Cyberbullying litigation a threat to Australian schools

Litigation about cyberbullying is underway in the United States and it may only be a matter of time before a victim in Australia suggests that a school failed in its duty to exercise reasonable care, even though that harm was suffered "beyond the school gate".

Educators should work towards implementing policies that are designed to reduce cyber bullying and which will also reduce the risk to schools from complaints or even litigation about their responses to cyber bullying.

Four lines of defence for schools to guard against litigation

  • The first line of defence should be that the school had a comprehensive code of conduct about cyber bullying and the use of technology.
  • The second line of defence is evidence of an ongoing program of teaching students about the proper use of technology and the importance of complying with the code of conduct.
  • The third line of defence is to demonstrate that the school had a proactive policy of dealing with complaints about cyberbullying in an efficient and procedurally fair manner.
  • The fourth line of defence is to keep accurate and detailed records about the three lines of defence above.

The third line of defence may prove to be the most problematic. Dealing with complaints appropriately is challenging, particularly as cyber bullies are typically anonymous. The complexity is compounded where the victim responds by fighting fire with fire.

Often cyberbullying will involve students from a number of schools. School authorities may need to cooperate with each other in dealing with complaints.

Advances in technology create new challenges

A new software program enables people to send photographs to mobile phones that will only be visible to the recipient for a specified period of time before disappearing - sometimes only seconds.

Complaints about the content of photographs that disappear will be particularly difficult to manage. (Presumably, however, the image can be retrieved by experts if necessary).

Schools taking innovative approaches to cyberbullying problem

In addition to the lines of defence listed above, some schools are developing other innovative approaches to this problem. One private boys’ school in Sydney has blocked access to social networking sites and mobile phone use during the school day.

Another school has encouraged students in its information technology class to create an anti-cyberbullying campaign. The Year 11 class used a project assignment to create the website deletecyberbullying.com. The message of the campaign is "Control, Alt, Delete Cyber Bullying". It encourages students to control the situation, alter the impact and delete cyberbullying in their lives.

Schools and parents need to work together to deal with cyberbullying

The future is difficult to predict, but cyberbullying shows no sign of decreasing. Schools will need to respond to advances in technology and be vigilant to minimise cyberbullying amongst their students. However schools cannot be expected to be responsible for dealing with cyberbullying alone.

Parents will need to be informed and proactive in the appropriate use of technology. They will also need to learn skills to enable them to support children who are subjected to cyberbullying. Many commentators have identified the need for schools and parents to work together to deal with cyberbullying.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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