In brief - Cyberbullying should be addressed in schools' social media policies
Businesses, and especially schools and their administrators and staff, have obligations to take action when they become aware of misuse of social media by employees or students and where business or school computers or online forums are involved. Further, many jurisdictions have mandatory duties to report cyberbullying that is discovered, particularly where minors are involved.
What is cyberbullying?
Social media tools are fast, efficient and cheap communication and used by nearly everyone. However, misuse of social media, specifically cyberbullying, can create a menacing and harmful environment.
Actions may be considered cyberbullying if online behaviour involves:
Using the internet or a phone in a harassing, threatening, or offensive manner. If these devices are used to spread messages or posts which have the potential to be viewed as offensive and can cause anger, outrage, disgust or humiliation, criminal penalties can apply.
Threats or intimidation: Trying to intentionally frighten someone by using any mobile devices, emails, or online posts is considered a criminal offence. If the threat is based on an individual’s race, transgender identity or sexual orientation, an additional penalty can be imposed.
Stalking: Someone online repeatedly contacts an individual with the intent to intimidate or frighten them. This may involve unwanted messages/phone calls causing the victim to fear for their safety.
Unauthorised access: Logging into another person’s online account without permission and viewing or altering their information is also a breach of criminal law.
Defamation: Publishing false information via the internet to intentionally cause damage to reputation or other harm is an offence.
Criminal laws may apply to cyberbullying
Cyberbullying itself is not yet a specific offence in Australia. However, there are a number of criminal laws that can apply to cyberbullies as long as they are deemed capable of being responsible for their own actions.
Cyberbullying can be prosecuted via offences under laws related to assault, defamation, extortion, harassment, indecent conduct and stalking.
Businesses and schools can be responsible for the acts of its employees online. Any individual above the age of 14 can be prosecuted in most Australian jurisdictions.
Failure to prevent cyberbullying can lead to negligence actions
Where cyberbullying takes place in a school environment, the target or victim may seek compensation against both the perpetrator(s) and the school on the grounds that the school failed to take reasonable steps to prevent the actions. Negligence actions can be brought against school authorities for an alleged failure to prevent the cyberbullying.
In establishing responsibility and liability, the courts will take into consideration how strong the connection is to the school, such as whether the social media was accessed at school, on school property, and by students and teachers, as well as whether the students are minors or adults.
Duty of care may go beyond school premises and hours
It is established that a school (and school authority) owes a duty of care to its students, and this duty has been recognised as extending to protecting students from the conduct of other students and includes both physical and non-physical (psychiatric and stress) injury. However, it is important to note that the test of the duty of care may not be limited to the school premises or school hours.
In one case, a student who sustained an injury while being bullied by a group of fellow students, sued his school despite the incident occurring after the school day finished and away from the school grounds.
Other cases have been brought seeking to extend the scope of a school's duty to address bullying via a website or blog hosted by the school, accessed using school computers, and school identified sites on third party pages (fan pages etc).
Schools may be held liable for failing to implement their social media policies
Under the Safe Schools program (which aims to create safe and supportive school environments for same sex attracted, intersex and gender diverse people), most schools are aware of their obligation to have an anti-bullying policy. However, not all have updated their policy to address social media issues.
When formulating a social media policy, schools should consider that the social media policy should be both appropriate and achievable. Administrators should ask what resources are available to monitor and enforce the policy and how even-handed enforcement is achieved.
A social media policy should include clear procedures to enable reporting of incidents and an explicit process to investigate. Once the process has been established, it must be followed consistently.
Mandatory reporting requirements extend to abuse via social media
Once schools are aware of abuse of minors on social media, they have a duty to report it. This falls under the mandatory reporting legislative requirement which is imposed on selected classes of people to report suspected cases of child abuse and neglect to government authorities.
This article is based on a presentation delivered by the author at the ANZELA conference held at the Stamford Plaza in Brisbane in September 2015.
While all Australian states and territories have enacted mandatory reporting laws, there are some differences across the jurisdictions. The main differences concern who has to report, and what types of abuse and neglect have to be reported.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.