Legal Expertise focuses on cyberbullying and the legal obligations on schools to tackle it

What is cyberbullying?
It 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’. Police experts and children’s charities are concerned at the increase of cyberbullying and charities are voicing concern that this new phenomenon is increasing at an alarming rate. School bullying already claims the lives of around 20 teenagers a year while thousands more suffer physical and psychological torment.

RECOMMENDED RESOURCE: To explore ways to help your students deal with common sources of stress, like cyberbullying, see Emotional Health and Wellbeing

How commonly do pupils encounter it?
The last few years have seen the rapid rise in this type of bullying, one which harnesses the modern technologies all teenagers use − mobile phones, email and web-based chatrooms. The Children on Bullying report found that one in four of the children surveyed had suffered some form of cyberbullying and 77% of the children identified cyberbullying (including mobile phones) as one of the new ways bullies target their victims.

The report also found that one of the major concerns expressed by children was the lifespan of video clips that showed them being bullied. The clip can be shown over and over again and develops a life of its own when forwarded by e-mail or posted on websites. That one incident of bullying is repeated causing great distress to the victims.

What form does this take in practice? 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.

2.

Picture/video-clips via mobile phone cameras − images sent to others to make the victim feel threatened or embarrassed.
3. Mobile phone calls − silent calls or abusive messages; or stealing the victim’s phone and using it to harass others, to make them believe the victim is responsible.
4. Emails − threatening or bullying emails, often sent using a pseudonym or somebody else’s name.
5. Chatroom bullying − menacing or upsetting responses to children or young people when they are in web-based chatroom.
6. Instant messaging (IM) − unpleasant messages sent as children conduct real-time conversations online.
7. Bullying via websites − use of defamatory blogs (web logs), personal websites and online personal polling sites. The Children on Bullying report also found that bullies were infecting victim’s computers with viruses, destroying online gaming accounts and making malicious reports to websites which resulted in their victim being blocked from using their favourite social networking site.


How should schools tackle this?

Schools need to recognise that cyberbullying is a specific type of bullying that needs to be dealt with along with the more recognised type of bullying in the playground. For schools to get this right, a precise definition of what constitutes bullying is crucial.

Is there a legal definition of cyberbullying?

A series of court cases have clarified the parameters of what constitutes bullying in a legal sense. A case in 2001 brought against Isle of Wight Council provided an objective assessment of bullying, which gave rise to the DfEE advisory pack Don’t Suffer in Silence. A further 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, a school’s duty toward bullied pupils was recognised in a case against West Sussex County Council, also in 2002, which established that a school can owe a duty of care towards a child even when they are outside of the school gates.

Are specific duties imposed on schools?

Under the School Standards and Framework Act 1998, state-maintained schools have specific duties to combat bullying, and must have anti-bullying procedures in place. Independent schools have similar obligations under the Education (Independent Schools Standards) Regulations 2003. A school is under the same obligations to tackle cyberbullying as with any other form of bullying, but must also recognise its own particular difficulties.

Could cyberbullying result in a criminal conviction?

Making repeated offensive remarks on websites can be a criminal offence. Perpetrators may also be found either to be breaking the Harassment Act 1997 or the Telecommunications Act 1984. However, there have yet been no prosecutions for incidents of this sort. Local charities have expressed the view that a few ‘high-profile’ court cases could well act as a deterrent.

This position has been given strength by the Education and Inspections Act 2006, giving teachers a legal right to discipline pupils and strengthening 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.

This e-bulletin issue was first published in February 2008

About the author: Mark Blois is the editor and author of Legal Expertise. He is a Partner and Head of Education at Browne Jacobson. Before becoming a Partner in 1996 he was awarded third place in The Lawyer Awards in the ‘Assistant Solicitor of the Year’ category. Having various disabilities himself has led Mark to commit his career to providing practical advice, support and training to schools, colleges and Local Authorities on the full range of legal issues. Mark is named as a leader in his field in both Chambers and Legal 500, is an Executive Committee member of the Education Law Association and is a LA governor at a special school in Nottingham. He writes extensively on education law and has had published over 60 articles in national publications. He is also the author of chapters in Optimus’ Education Law Handbook, the IBC Distance Learning Course on Education Law and Croner’s Special Educational Needs Handbook.

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