Sarah Erwin-Jones discusses the growing problem of cyberbullying towards both pupils and staff, and looks at schools' legal obligations
Bullying is always an emotive subject. It is getting worse according to the latest research conducted by Ofsted, as published in its report, Children on Bullying. One may argue whether this is a question of fact or whether greater publicity means it is talked about more. Regardless, school bullying already claims the lives of about 20 teenagers a year, while thousands more suffer physical and psychological torment. What is clear is that the emergence of cyberbullying means there is no longer any safe haven from its effects.
According to Ofsted, four out of 10 children have experienced some form of cyberbullying (see below for a definition of cyberbullying).
What is cyberbulling?
Cyberbullying is a type of aggression defined by Childnet International as the ‘sending or posting of harmful or cruel text or images using the internet or other digital communication devices’. The Anti-Bullying Association has identified seven types of cyberbullying, ranging from abusive text messages, emails and phone calls, to bullying in internet chatrooms, social networking sites and instant messaging:
1. Text messages – unwelcome texts that are threatening or cause discomfort.
Cyberbullying is insidious; it can be conducted 24 hours a day, seven days a week, following children into their private space and outside school hours. It can be anonymous. The audience is large and can be reached rapidly. Unlike other forms of bullying, a single incident can be experienced as a multiple attack – a video posted to a website can be copied to many different sites. Bystanders can become accessories by passing on a humiliating message. Messages on social networking sites remain there to damage social life and friendships and, in the case of teaching staff, reputation and credibility.
Teachers too can be victims. The advent of cyberbullying also adds a new and worrying gender dimension to the wider problem of bullying. Ten years ago, psychologists thought of aggression in verbal and physical terms, traditionally seen as a male domain. But cyberbullying is more akin to relational or indirect bullying, such as rumour-spreading, where female pupils are more likely to be involved.
There is both a moral and legal duty placed on schools to protect their members and provide a safe and healthy environment. This should ensure that steps must be taken in respect of bullying to deal with the problem at source. Nevertheless, the question of how to tackle bullying generally has been debated for many years and with mixed success. Research conducted by Childline in 2003 highlighted that despite years of schools attempting to take a tougher line on bullying, two out of three secondary-school pupils would feel uncomfortable telling a teacher they were being bullied. More than half of primary and secondary school pupils surveyed said that bullying remained a problem in their schools. Schools that did not involve their pupils in developing anti-bullying initiatives had higher levels of bullying. The Ofsted research indicates that these issues have not gone away. Effective anti-bullying strategies need to start with adults listening and learning from pupils about their experiences, how they cope, and what their support needs are.
The duty on schools to protect their members is as applicable to cyberbullying as it is to other forms of bullying. It would be naive to suggest that cyberbullying can be eradicated from the school community, but it would appear that more could and should be done. Recent research by British Telecom, in conjunction with CEOP, the Internet Watch Foundation, Internet Content Rating Association, Get Safe Online, Stop it Now and Yahoo found that 70% of teachers themselves did not know where to get advice if they suspected a child was being bullied on the internet.
In order to deal effectively with cyberbullying, the school (including school governors, headteachers and senior managers) needs to decide who will take responsibility for coordinating and implementing cyberbullying prevention and response strategies. Ideally this should be a member of the school’s senior management team and/or the existing member of staff responsible for the school’s overall anti-bullying activity.
While there is no single solution to the problem, guidance issued by the DCSF produced in association with Childnet International has identified five key areas schools need to address (see box below).
Five key areas that schools must address
School cyberbullying policies alone cannot deal with the problem. Service providers are also under an obligation to deal with cyberbullying and schools should be aware of the obligations placed on service providers and the sanctions that can be taken. Mobile phone operators have nuisance call centres and procedures to deal with cyberbullying. Operators can change the number of the person being bullied, although they cannot bar a number from contacting a phone (some handsets, however, do have this capacity). Phone accounts can be blocked, but only with police involvement.
Social and video hosting networking sites, Instant Messenger (IM) and chatrooms or individual websites should have clear and prominent reporting mechanisms. Site providers can remove content that is illegal or breaks the terms and conditions of their licence, and can delete the accounts of those who break the rules.
So what are the legal obligations on schools? The School Standards and Framework Act 1998 places a specific duty on state-maintained schools to combat bullying, including ensuring that anti-bullying procedures are in place. The Education (Independent Schools Standards) Regulations 2003 place similar obligations on independent schools.
A case in 2001 brought against Isle of Wight Council provided an objective assessment of bullying, which gave rise to the advisory pack Don’t Suffer in Silence, produced by the DCSF. An action against Enfield London Borough Council a year later established that behaviour needed to be ‘deliberately targeted and persistent’ in order to constitute bullying. Finally, in a case against West Sussex County Council, also in 2002, the duty of care that a school duty owes pupils – to take reasonable steps to protect them from foreseeable harm – was recognised as being applicable not only inside the school gates, but also outside. It should be noted that this duty of care applies not only to the school as a whole, but also to each individual teacher. The law accepts that a teacher would have discharged this duty if they had conformed to the standards of a reasonably competent member of their profession at the relevant date.
The Education and Inspections Act 2006 contains some legal powers that relate directly to cyberbullying. Headteachers have the power to regulate the conduct of pupils when not on school premises or not under the control of a member of staff, to ‘such an extent as is reasonable’. What is reasonable is defined in the act in terms of proportionality and therefore becomes a question for the courts. The act also provides a defence for school staff in confiscating items such as mobile phones from pupils. A pupil can be requested to reveal a message, or content on their phone, to establish if bullying has occurred. Disciplinary measures may be taken against those who refuse to comply. Where the school’s behaviour policy expressly provides and where the pupil is reasonably suspected of involvement in cyberbullying, staff may search through a phone if appropriate. In cases of illegal content the police should be called.
But if the cyberbullying continues, can it lead to a criminal conviction? Bullying is not a specific criminal offence but there are laws that can apply to cyberbullying in terms of harassing, menacing and threatening communications. Cyberbullying could be a criminal offence under a number of laws including the Protection from Harassment Act 1997, the Malicious Communications Act 1988, Communications Act 2003 (s127), Public Order Act 1986, and the Obscene Publications Act 1959. When cyberbullying takes the form of computer hacking then criminal penalties under the Computer Misuse Act 1990 may apply. The Defamation Acts of 1952 and 1996 also deal with material published on the internet.
However, there have been no prosecutions so far. While legal action is never an easy option there is a body of opinion that considers a few high-profile court cases could be of considerable benefit in establishing a legal deterrent to cyberbullying, and in strengthening the powers of those who deal with its effects.
It is hoped that the implementation of the Education and Inspections Act 2006 will improve the situation. It gives teachers a legal right to discipline pupils and strengthens their authority to take firm action on bullying. This new legislation will also send a strong message to parents and pupils that bullying will not be tolerated, with court-imposed parenting orders to compel parents of bullies to attend parenting classes or face fines of up to £1,000.
Sarah Erwin-Jones is a legal partner with Browne Jacobson. Sarah specialises in social services and the care sector and provides legal advice relating to institutional abuse and professional negligence.
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