Legal Liability for Cyberbullying: Can a school be held responsible?

Bullying and harassment between students is not new and, unfortunately, continues in schools today. Historically, bullying was limited to acts of harassment and violence on school grounds. However, with the development of new technology and social media platforms, bullying behaviour has become multifaceted and often extends beyond the school grounds and outside of school hours. Children are more connected to each other than ever before, making it more difficult to monitor and protect against online bullying.

What then, is the exposure of a school to liability for incidents of cyber bullying by its students? Is a school obliged to protect students from cyberbullying that does not take place on school grounds?

What is cyberbullying?

There is no universally accepted definition of what constitutes bullying behaviour. Despite this, it is clear that such behaviour involves repeated malicious and hostile conduct perpetuated with the aim of causing physical and/or psychological harm to the victim.

Cyberbullying refers to the use of technology to bully or harass. It can manifest as derogatory comments and posts, threats of violence and harassment, social exclusion and altered images posted on online platforms. This growing problem poses a real threat to the physical and mental health and wellbeing of school students, who can no longer find at least some relief by leaving the school grounds at the end of the day.

Liability and Negligence

Negligence is a legal cause of action which allows an injured party to sue another for compensation in situations where the offending party owed the injured party a duty of care and injury has resulted from the offending party’s failure to take reasonable steps to protect against that harm.

There are three main elements that must be proven in order for a claim of negligence to succeed:

Duty of care – The defendant must owe a duty to the plaintiff to take reasonable care to prevent a foreseeable risk of harm.
Breach of duty – The defendant must have breached the duty of care by falling below the standard of care expected of them.
Causation – The breach of duty must have caused injury to the plaintiff and that injury must have been reasonably foreseeable.

Duty of care

It is well established that a school authority owes a non-delegable duty of care to its students to take reasonable care for the safety and wellbeing of the students in their care. [1] The standard of care owed by a school authority to its pupils is a high one, given the vulnerability of school children, their dependence on the school authority to provide a safe environment and the control the school authority has the ability to exercise over them.

A school’s duty of care, however, is not necessarily limited to activities taking place on school grounds and during school hours. Therefore, in cases involving cyberbullying, particularly that which occurs outside school grounds and outside school hours, does the school have a duty to take reasonable care to prevent harm to a student?

Unfortunately, there is no definitive answer to when a school authority’s duty of care ends. The scope of its duty of care and the extent of its liability for injury is always dependent upon the particular circumstance of the case. Commonly, a duty of care will only be found to exist in situations where the relationship of ‘schoolmaster’ and pupil was in existence at the time of the incident.[2] However, relevant case law suggests that the duty owed by a school authority to its students is not confined to ordinary school hours, as the relationship of teacher and student can extend beyond school hours and off school premises.[3]

Courts have been reluctant to impose too high a standard on school authorities in relation to activities occurring outside of school hours and off school grounds, for obvious reasons. However, a duty of care may be found to exist in situations where:

The school has knowledge or ought to have knowledge that cyberbullying is occurring at or outside school amongst its students;
The school has control or ought to have control of a particular situation, such as where the cyberbullying is occurring through the use of school technology;
The school authority has directed its students to take part in an online activity which is the platform for the cyber bullying; and
The school authority is aware of bullying taking place on school premises and it would be reasonable for it to assume that such behaviour is taking place off campus.

Breach

If a duty of care is found to exist between the school and the student(s) regarding the online bullying, the school must be able to show that it took reasonable steps to prevent the bullying from taking place and actioned it as soon as they became aware of the issue.

Accordingly, it is always best to be proactive in the management and prevention of cyber bullying.

Recommendations

Steps to minimise risk and protect a school from legal liability regarding cyberbullying cases can include, among other things:

Maintaining effective policies and procedures regarding the use of technology and social media and bullying in your school;
Maintaining proper supervision of the use of all technological devices on school premises, including both the use of the school authority’s own online facilities or the use of a student’s own device;
Performing a prompt and thorough investigation into all allegations of cyberbullying;
Dealing with bullying incidents in an appropriate and prudent manner, including taking appropriate disciplinary action where necessary;
Regularly educating students about cyber safety and bullying, including types of bullying, the adverse consequences such behaviour can have on physical and mental health and wellbeing and possible legal implications for perpetrators;
Regularly train staff about bullying, including how to identify the signs of bullying behaviour in perpetrators and victims and how to best respond.

If you have a student that is the victim of bullying ensure they are linked in with support. This may be a referral to the school counselor or discussion with the parents about seeing a doctor and getting a referral under a Mental Health Plan to a private psychologist. For principals and teachers it is useful to consult resources such as Beyond Blue for guidance on how to support the victim of bullying.

How Brennan Law Partners can assist your school

Brennan Law Partners can assist you to be proactive in protecting against cyberbullying. Contact us to review your policies and procedures to ensure they are effective and up to date and let us know immediately if you are hesitant about appropriate steps to take in a given situation.

This is meant as a guide only and should not be taken as legal advice.