The shades of grey of cyberbullying in Australian schools.

Goff, Wendy

Introduction

Legal frameworks regarding bullying are diverse, and in Australia, because of the federal nature of law, this diversity is accentuated from jurisdiction to jurisdiction. In Victoria, the Crimes Act 1958 considers the concept of cyberbullying through Section 21A, which deals with the notion of stalking via electronic communications. The Victorian Department of Education and Early Childhood Development (DEECD) has attempted to tackle the notion of cyberbullying through the strategy 'Safe Schools are Effective Schools' (DEECD, 2007). This strategy demands that all Victorian public schools must develop and implement a Student Code of Conduct that incorporates and deals with cyberbullying, and includes anti-bullying and anti-harassment strategies.

The guidelines for the development of the Student Code of Conduct empower each school to construct a document that fosters a healthy school culture and incorporates the state-wide framework of the Student Discipline Procedures, 1994. The procedures grew out of section 25 of the Education Act 1958 (Victoria) and provide detailed actions that must be followed in disciplining all students within Victorian state schools. The legislation also considers issues such as records to be kept in relation to disciplinary action, and the process of suspension and expulsion.

Cyberbullying now presents new challenges to Australian schools and to Australian society in general. Although bullying has long been a problem in Australian schools (see, for example, Whitney & Smith, 1993), cyberbullying has now become a matter of serious concern in Australia (Abrahams, 2009), and is increasingly prevalent amongst young people in Australia and throughout the world (Cross et al., 2009; Oliver & Candappa, 2003; Smith, 2007). Cases of students being suspended from school have been reported in Australia (for example, Patty, 2009), and there are bound to be many more that have remained unreported.

Australia's first successful prosecution for cyberbullying occurred in 2010, but not in a school situation (Milovanovic, 2010). Cyberbullying is different from traditional forms of bullying, and there are now few areas of a young person's life that cyberbullying cannot penetrate. This makes this type of bullying potentially more malicious and damaging to the health and well-being of young people, and increasingly more difficult for schools to deal with.

The Student Codes of Conduct developed by state schools in Victoria have attempted to cover cyberbullying but, given the elusive nature of this type of bullying, it may be extremely difficult for any school to effectively enforce any type of sanction. Current Student Codes of Conducts support the notion that bullying behaviour in schools should be dealt with as a part of a school's duty of care to provide a safe and supportive environment. Where and when this duty of care commences and ceases appears to be a grey area in Australia, and at present remains undefined.

Safe and supportive schools promote and embed a culture of anti-bullying within the ethos and philosophy of the school, and foster and teach a variety of strategies that can empower students to deal effectively with bullying and increase resilience. But current Student Codes of Conduct cannot effectively tackle the issues surrounding cyberbullying due to the multitude of places and spaces in which cyberbullying can potentially evolve. If cyberbullying takes place outside the hours and walls of the school but affects a child's well-being at school, does the school's duty of care for that student extend beyond the child's time at school, or is it merely applicable during that child's time at school? Does a school's duty of care encompass the evenings when its students may be bullying others via social networking software such as MySpace or Facebook, or through mobile phones? And does a school's duty of care empower the school to deal with issues that are happening after hours?

These are questions that demand immediate clarification but they are issues that are yet to be considered by legislation or departmental policies. These are the shades of grey that Australian schools have been left to decipher.

What can happen

The scenario that follows is fictitious, although it shares many characteristics with a major case in the USA that led to the suicide of the victim (Munro, 2007). While there have been no cases in Australian schools with consequences so serious, the scenario is introduced to illustrate the kinds of issues that school principals have already had to face, and are increasingly likely to deal with in the future.

A group of Year 9 boys decide that it would be funny to play a practical joke on one of their peers throughout the Christmas break. One of the boys within the group has taken a liking to a girl in his class and thinks that this may be a way to stay in contact with her, without exposing the fact that he likes her, throughout the holidays. During lunchtime on the last day of school the boys decide that they will create a phony persona (a young teenage boy) and attempt to persuade the girl to become his girlfriend.

During the holidays the boys create a false MySpace account, Facebook account, MSN account, an email account and they purchase a SIM card under their new alias. They choose a suitable photograph from the internet, which then becomes the visual representation of the alias. Each boy then decides to take it in turns to interact with their 'new friend' to demonstrate a history of an ongoing friendship. When this is established, they decide to send a friend request to the girl via Facebook (from the alias), and begin talking to her on a daily basis, eventually asking her to be the girlfriend of the alias.

Throughout the holiday period, the boys take turns at being the alias. They speak to the girl every day via the internet and one of the boys speaks to her weekly over the phone. The boys view it as harmless fun and speak to each other nightly via chat so that they are all aware of what has been communicated.

When the Christmas holidays are drawing to a close, the boys decide that they need to end the joke, including the relationship with the girl. They discuss possible options (via chat) before deciding that the alias would need to die, and so they call the girl and inform her of his death. They make the call, delete all the accounts and destroy the SIM card. All activity except for the initial planning takes place during the school holidays.

On the first day of school a distraught family presents at the principal's office. They explain that the girl's boyfriend has passed away during the holidays and they ask if the girl could see the school counsellor. They also advise that they hope to take the girl to the boy's funeral and are making attempts to contact the boy's family via the police.

The boys involved in the scenario see the damage that they have caused and decide that they must tell the girl about their plan. The girl is humiliated and her parents are furious; they contact the police and are told that because the girl was a willing party and that no threats have been made there is nothing they can do. They turn to the school. They demand that the school punish these boys.

The question is posed: where does the school's duty of care begin and where does it end?

The implications

The issues raised are complex but, unfortunately, this situation and others like it are becoming increasingly common within both primary and secondary schools throughout Australia. In a scenario such as this, do parents, students and the principal really have a clear understanding of a school's responsibility in relation to cyberbullying? Let us unpack the scenario ...

In such a situation, it is understandable that the victim and her parents would expect that there would be consequences for the boys' actions. After all, they had all been harmed by the actions of the boys. They may also have been made to feel foolish, because they were deceived by the boys' actions. There would be an expectation that the school would assume responsibility (if the police cannot), despite the incident taking place in the school holiday period and in their family homes. After all, the children all attend the school, it was planned at the school and it had a serious impact on the school after the holiday period.

What about the parents of the boys involved in the bullying? Perhaps they may not believe that it is the school's responsibility, and may feel that as parents they need to assume responsibility? But this may also depend on who brings the bullying to their attention. If the principal made contact with the parents, then perhaps responsibility may be 'handed over' to the school, whereas if the victim's family makes contact with the parents of the perpetrators, then perhaps they would be more inclined to assume responsibility.

What about the principal of the school? A family has arrived at the school with a distraught child, and it is revealed that a group of children who also attend the school have caused the harm. The harm has not taken place in school hours but it has spilled into the school after the fact. Does he or she have to assume some form of moral responsibility? How does a principal's responsibility for duty of care apply to circumstances such as these?

These are all interesting questions that, in a highly connected 21st-century world, demand answers.

Discussion

According to Bamford (2004), schools must play a leading role in the effort to ensure that young people learn to use the internet in a safe and responsible manner. The Victorian Student Code of Conduct (DEECD, 2007) supports this notion but, if schools are to be effective leaders in teaching young people to learn how to use the internet safely, it is imperative that schools know when and where this obligation begins and ends. When does this teaching and responsibility become that of the parents, and when do schools have a legal obligation to tackle cyberbullying-- especially if it takes place outside the hours and confines of the school building? There are many shades of grey to this issue and, until the question is clarified, schools are open to the risk of compensation claims for psychological injury from victims of cyberbullying.

Existing Australian legislation and departmental policies have failed to keep up with advances in technology and do not effectively deal with the problems surrounding cyberbullying, either within our schools or within society more generally. In the hypothetical incident described above, it appears that police would be unable to take any legal action to deal with the issue. This is due to the fact that current Australian legislation is extremely limited, and requires the adaptation of other legal mechanisms such as anti-stalking and harassment laws to tackle cyberbullying. It also appears that current laws and policies have stemmed from face-to-face bullying measures and are not designed to deal with the new forms of bullying that are possible in the 21st century. In a digital world that is highly connected and that has an enormous emphasis on multi-modal collaboration, it is imperative that legislation and policy cover cyberbullying effectively.

Schools need to be provided with clear boundaries to which their duty of care extends, and students, teachers and parents need to be provided with clear avenues to protect them outside school. Until these areas are considered, schools and students are likely to fall victim to cyberbullying, and the shades of grey that currently cloud existing policy and legislation will remain. Schools will be left open to a variety of potential legal ramifications, and victims will not have viable options to explore for remedy. The demands on schools to tackle the cyberbully will continue to grow.

Management practices that educate the community in relation to cyberbullying need to be adopted by school leaders and nurtured by policy-makers. For the well-being of students and for the reduced exposure to legal risk for schools, it is imperative that schools and parents work alongside one another to develop a consistent range of strategies to combat cyberbullying, and that a clear definition of responsibilities and duty of care is both communicated and established within the school community.

Multimedia technologies have created new domains in which young people learn and interact but they have also provided an abundance of avenues via which bullying can now occur. If cyberbullying is to be dealt with effectively and our young people are supported to reach their full potential in a safe and nurturing environment, it is vital that both legislation and policy reflect this change, and support schools as they consider such issues in a child-centred and risk-free environment. It is also vital that society has a clear understanding of when and where a school's duty of care begins and ends, given the changing nature of the times, places and spaces of learning. These are the shades of grey that need to be eliminated.

The change process in developing such understandings, guidelines and policies will, like any other, take a considerable amount of time to stabilise and work effectively. During this process it is imperative for schools and education departments to establish, define and communicate schools' responsibilities with regard to after-school internet usage. Schools need to be given clear directions about where their duty of care commences and ceases, and they need to communicate these understandings loudly and clearly to their school communities, ensuring that evidence is collected to ascertain parental understandings.

If parents are informed as to how the school will deal with incidents of cyberbullying and when such incidents becomes parental responsibility, will they be better equipped to protect their children and to deal with such incidents effectively should they occur? Many communities may be unclear on the responsibility of after-hours internet usage, and this is a global problem that needs to be dealt with. It is vital that policy and law catch up with the digital age. Current law and policy that consider issues arising from face-to-face bullying are not sufficient to deal with the issues that have arisen in the 21st century.

Conclusion

Back to the hypothetical incident ... If the principal is to assume responsibility, what action would be appropriate? Is there a course of action that could achieve justice with compassion? What happens if one or more of the parties are not convinced that justice has been done?

What about the law? If at some time in the future, the victim and her family were to decide that in fact the matter was not dealt with satisfactorily, would they be within their rights to seek compensation at common law for breach of duty of care?

These are the issues that schools have to wrestle with when they are confronted with situations such as these, and all the indications are that they will become more frequent in years to come. Parents need guidance about how to protect their children from harm. Schools need guidance, not just on prevention, but on the appropriate actions to take when protection fails.

The shades of grey need to be considered and clarified.

Keywords

law

anti-social behaviour

legal responsibility

duty of care

bullying

negligence

DOI: 10.1177/000494411105500207

References

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Cross, D., Shaw, T., Hearn, L., Epstein, M., Monks, H., Lester, L., & Thomas, L. (2009). Australian covert bullying prevalence study. Perth: Child Health Promotion Research Centre, Edith Cowan University.

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Patty, A. (2009, May 8). Cyber bullies run amok at top school. Sydney Morning Herald. Retrieved 9 August 2011 from http://www.smh.com.au/news/technology/cyber bullies-run-amok-at-top-school/2009/05/07/1241289315388.html

Smith, A. (2007, January 9) Cyber-bullying affecting 17% of teachers, poll finds. Education Guardian. Retrieved 11 August 2011 from http://www.guardian.co.uk/education/2007/jan/19/schools.uk

Whitney, I., & Smith, P. (1993) A survey of the nature and extent of bullying in junior/ middle and secondary schools. Educational Research, 35(1), 3-25.

Wendy Goff

Monash University

Author

Wendy Goff is Lecturer in the Faculty of Education at Monash University, Gippsland campus.

Email: wendy.goff@monash.edu