With the proliferation of ‘next generation’ Smartphones, portable tablet computers and gaming devices, it would seem that social media is here to stay. Indeed, every day seems to bring news of the latest celebrity ‘tweeting’ controversy or viral video.

This two-part article will examine the phenomenon of social media, identifying the key legal issues for schools, pupils and parents.

  • The first part of the article, this month, will look what social media is, and explore the legal implications for schools of four topical areas: ‘sexting’, cyberbullying, privacy and copyright.
  • The second part, next month, will draw together the latest guidance and best practice in these areas, looking at what liabilities schools, pupils and parents may have, and at how these responsibilities can be met without standing in the way of a valuable learning experience for your pupils.

What is social media?

Essentially, social media is the name given to a group of online communication and interaction tools generally characterised by a rich social community and the opportunity for users to generate their own content (‘user-generated content’, or UGC) through the uploading of materials, or the exchange, rating and editing of existing media.

What makes this type of collaboration so exciting is that the media can take any form, whether audio, visual, text or any combination of these. It will also evolve dynamically as people interact with it.

Types of social media

In a recent article, Professors Kaplan and Haenlein classified the main types of social media:

  • Blogs are online diaries or personal websites. While initially text-based, increasingly pioneers are producing audio (podcasting) and video (vlogs) blogs.
  • Collaborative projects (such as rankmyteacher.com, Wikipedia and Delicious) allow a community to accomplish more than one person could alone. Such projects split into two main areas: wikis (web pages that allow users to modify text-based content), and social bookmarking (users collect, and rate websites, or share bookmarks).
  • Content communities (such as Youtube and Flickr) allow the sharing of media (documents, videos, audio, images).
  • Social networking sites (such as Facebook, Myspace and Twitter) allow you to create a personal profile and interact with other users through chat, sharing photos, applications, and micro-blogging (short 144-character messages that can be linked to the user’s geographical location).
  • Virtual social worlds (such as Sims and Second Life): users (or ‘residents’) create avatars to represent themselves and interact in a 3D virtual environment.
  • Virtual game worlds (such as World of Warcraft) allow players from across the world to play in online game worlds.

Sexting

‘Sexting’ is the term given to the practice of sharing sexually explicit images or text. While the taking of provocative pictures is not a new trend, the prevalence of mobile phones with cameras and webcams, and the easy transmission of images online or via mobiles (and their subsequent retransmission to a wider audience without the subject’s approval) makes this phenomenon worth discussing.

Indeed, a 2009 survey in the United States by AP-MTV showed that 24 per cent of American 14- to 17-year-olds have been involved in ‘some type of naked sexting’.

When do people sext?The Pew Research Centre in the United States sets out three scenarios where sexting might

take place:

  • exchange of images exclusively between romantic partners
  • images that have been exchanged between romantic partners are shared with others outside the relationship
  • exchange of images where at least one person would like to start a romantic relationship.

Social networking sites
At a lesser level, the phenomenon of sexting can also be associated with the posting of provocative profile pictures on social networking sites, for example on Facebook or Myspace, which is now commonplace.

In an article on sexualised images, the Guardian quotes a 14-year-old girl as saying: ‘I don’t think what I’m doing is anything different to what Britney does in her new video. Plus, I love the attention.’

It is difficult to argue with this comment, particularly when celebrities have recently posted provocative pictures on their Twitter accounts – such as Demi Moore, who showed herself posing in a bikini in front of a mirror.

What does the law say?
While the sending or posting of provocative images between consenting adults is not illegal, publishing a sexual image of a child (under 18) is illegal under child pornography laws, even where it is the child themself who created and posted this material online.

It is also worth noting that the Violence Against Women and Girls (VAWG) Advisory Group for the DCSF (department of children, schools and families) published a report in 2010 closely linking sexting to cyberbullying when pressure is applied (whether directly or from a peer group) to send sexual images to others.

Child protection
The dilemma that school and law enforcement authorities face is between educating pupils about the dangers of this type of behaviour – for example several teen suicides have been blamed on the distribution of sexted images to an audience wider than that contemplated by the subject of the photo – and protecting the wider public from viewing this material.

There are obvious child protection implications where provocative pictures are sent to teachers. It is also worth considering that there is the potential for teachers themselves to become the victims of such pictures, particularly in relation to covert mobile phone footage taken within the classroom and then shared with peers.

We will discuss this in more detail next month, in part 2 of this article, which looks at ways of using new media safely in schools.

Cyberbullying

Just as bullying can occur in real-life, so has social media made it possible for ‘cyberbullying’ to occur across a range of communications technologies and platforms. Cyberbullying can take a variety of forms, from insults, threats and harassment to humiliation, embarrassment, defamation or impersonation. It can be as simple as inflicting ‘traditional’ bullying by a different method. Common examples of cyberbullying include:

  • spreading of gossip or false information, for example relating to an alleged sexual encounter
  • disseminating images and video clips, whether on websites or directly to others, in order to make the victim feel embarrassed or threatened (for example, the capturing of ‘happy-slapping’ clips, where an assault is filmed). See also ‘sexting’, above
  • dissemination of private information, for example a teacher’s private mobile phone number
  • threats or abuse, for example about the victim’s personal characteristics
  • exclusion from online groups or the creation of online groups about the victim
  • impersonation of the victim and creation of fake profile pages that are humiliating or contain false information (see ‘Privacy’, below).

Invasion of safe spaces
Cyberbullying is particularly difficult for victims, as the ubiquity of mobile communication technology means bullying can occur any time and in any place, invading previously safe home and private environments.

Social media allows perpetrators to remain anonymous, and to circulate harmful content to large groups of users, widening the scope of the bullying.

The semi-permanent nature of the internet makes it hard to erase harmful content once created. Users can redistribute and reproduce it across multiple websites and platforms with comparative ease.

Teachers as targets
Because it does not rely on the traditional asymmetry of power and face-to-face contact, this type of bullying can be directed towards teachers as well as pupils. In a 2009 survey carried out by Teacher Support Network and The Association of Teachers and Lecturers, 15 per cent of the teachers who responded reported that they had been victims of cyberbullying).

Recently, cyberbullying was cited as a contributing factor to the attack against a pupil carried out by science teacher, Peter Harvey, who was prosecuted for murder. The court recognised that a handful of children were deliberately trying to goad Mr Harvey in order to film his reaction.

Privacy

Eric Schmidt, CEO of Google recently said in an interview with the Wall Street Journal (August 2010): ‘I don’t believe society understands what happens when everything is available, knowable and recorded by everyone all the time.’ He also predicted, apparently seriously, that ‘every young person one day will be entitled automatically to change his or her name on reaching adulthood in order to disown youthful hijinks stored on their friends’ social media sites.’

How does this affect schools?
Schmidt’s comments are relevant for schools for a number of reasons. First, pupils should be taught that the material they post on social media sites can become semi-permanent. If they are not comfortable with their peers, parents, teachers or the wider public viewing this material, then they should consider whether that site is an appropriate forum to store it – and if so, what protections there are against the material being made available to the wider public.

Second, children should be prevented from sharing personal information such as addresses, phone numbers or school details over the internet because this could be used for grooming. Children must be taught about the dangers of sharing personal information in this way.

Teachers vulnerable too

Teachers should also consider what would happen if pupils, head teachers or governors gained access to their Facebook page.

According to a survey conducted last year by Teachers TV, 47 per cent of the education workforce polled feared that their personal life could be tapped into by their pupils via their Facebook profiles.

Public information
School pupils and teachers should remember the public nature of social media sites such as Facebook and Twitter. More than once, users have posted comments about people at school that have led to national news items when parents complained.

The comparatively easy creation of fan groups has also allowed parents and pupils to mock or rate their teachers, or to exert public pressure if they disagree with school policies.

For example:

  • the Daily Mail reported that seemingly innocuous comments such as ‘by the way, (class) 8G1 are just as bad as 8G2′ were responsible for bringing the school into disrepute.
  • the Metro carried a story that Facebook comments were allegedly posted by a teacher about how it was ‘funny when Faye McDonnell burst into tears after being sent to sit under a “thinking” tree for being naughty’.
  • the Guardian recounted a story of a female teacher who found out that an ex-student had created a group for people to join if they thought she was ‘still a virgin’.
  • the Sunday Times told how over 650 Facebook users joined a group called ‘Ban Andrea Charman from Teaching Anywhere’, and ultimately hounded the headmistress from her post after primary school pupils were told of a plan to slaughter a school lamb as part of a farming project.

Whether or not these allegations were ultimately proved unfounded, the nature of social media allowed stories like this to damage to the reputation of all involved.

Defamation

An important social media case is that of Applause Store Productions Ltd and Matthew Firsht v Grant Raphael (2008).

This case confirmed that creation of a false Facebook group page and a false personal profile containing a photo and inaccurate details of sexual orientation, relationship status, birthday and political and religious views, was:

  • a misuse of private information (the false profile)
  • defamatory (comments on the group page).

Copyright

The final area of concern for schools is breach of copyright and malware. The prevalence of media material means that pupils and teachers can easily download and reproduce material within the school without the appropriate permission or licence from the copyright holder.

Unauthorised downloading of material, particularly of large media files, via links passed by social networking sites or instant messaging can also have implications for the bandwidth and security of school networks.

In particular, schools should prevent access to unauthorised P2P sites (peer-to-peer sites allow sharing of files directly between computers) as these are often insecure and can contain illegally downloaded media files or viruses.

Failure to prevent students using these unauthorised file-sharing sites to download songs may expose the school to criminal and civil liability.

Risks and benefits

While this article has detailed a number of pitfalls of social media, the technology itself is often neutral. Many of these sites will also serve as useful educational platforms or provide valuable enrichment activities for students. The challenge for schools is in balancing the risks and benefits involved.

  • Part two, next month, will look at guidance, and suggest frameworks schools can put in place to use these technologies safely.

Kris Lines is head of sports law at Staffordshire University and a British Gymnastics assessor. He runs a blog.

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