Cyber-Bullying and Legal Liability in Today’s Schools
Written by: Shaheen Shariff
Today’s technology affords the ability to tease, harass, and threaten an unlimited number of people with unprecedented speed and anonymity – and the results can be devastating for anyone on the receiving end. The increasingly epidemic issue of cyber-bullying has inspired a rash of teenage (and younger) tragedies nation-wide.
This morning, the front page of the New York Times tackled one of the root problems head-on: a lack of consistent and comprehensive legislation. In “Online Bullies Pull Schools Into the Fray,” Jan Hoffman writes:
Schools these days are confronted with complex questions on whether and how to deal with cyberbullying, an imprecise label for online activities ranging from barrages of teasing texts to sexually harassing group sites. . . . Affronted by cyberspace’s escalation of adolescent viciousness, many parents are looking to schools for justice, protection, even revenge. But many educators feel unprepared or unwilling to be prosecutors and judges.
So how should schools handle cyber-bullying? All finger pointing and blame-placing aside, where do the confines of their legal jurisdiction (and moral duty) begin and end?
In Confronting Cyber-Bullying: What Schools Need to Know to Control Misconduct and Avoid Legal Consequences, Dr. Shaheen Shariff evaluates the current policy vacuum regarding the extent of educators’ legal responsibilities to intervene when incidences take place outside of school hours and off school grounds – ultimately showing how zero-tolerance policies presently in place are ineffective. Originally published in 2009, little progress has been made on the passage of proper regulatory legislation. Here’s a teaser from this invaluable guide to navigating the new frontier of abusive cyber-use…
By Shaheen Shariff
An excerpt from Chapter 1: CYBER MISCONDUCT: WHO IS LORD OF THE BULLIES?
[Confronting Cyber-Bullying] undertakes a more in-depth examination of legal principles and doctrines that might affect educational policy decisions and practice. That said, however, I limit the legal technicalities to engage in contextual analysis and explanations that ensure the discussion is not too legal for educational policy makers and practitioners. I want those educational professionals to gain the greatest benefit from learning their legal rights and responsibilities, and the rights of their students in cyberspace.
I also believe that legal practitioners and anyone interested in the impact of law and technologies on educational policy and practice and on the way we construct and interpret education in a knowledge society will find significant value in this book. If I can help readers approach the issues with a new or sufficiently adjusted lens through which to conceptualize the legal and policy issues, I will have succeeded in my quest.
Given that my research has expanded to international levels, I provide case examples and emerging information on legal responses that are being implemented in various countries such as Japan, China, India, European nations, Australia, New Zealand, Britain, the United States, the United Kingdom, and Canada. By way of caveat, however, I caution readers that we are currently in the early stages of legal research on cyber-bullying. Many countries have only recently become aware of the fact that cyber-bullying exists. Some are only just beginning to recognize the enormous potential of online expression (when not redirected in positive ways) to undermine learning and social development among children and youth. Although this ought to raise concerns, I do not want to raise fears in the minds of educators and policy makers. I strongly believe that the study of cyber-bullying using a more substantive legal approach will demonstrate educational and ethical opportunities that allow all of us to transform negative student online expressions into collaborative and proactive learning and social initiatives. Proactive responses can help us take advantage of the infinite resources such technologies provide. It is therefore incumbent on us as educators to seize these opportunities instead of focusing too heavily on the dark side of student online communication.
I believe this is important not only from the perspective of reducing or curtailing cyber-bullying, but also because it will help educators, government policy makers, and legal practitioners realize that the Internet and communications technologies are here to stay and that education will inevitably be increasingly delivered through the use of these technologies. If we cannot “control it” we will need to ensure that technologies do not control us. To that end, I believe it is important to draw attention to the opposing mind-sets that adults, compared with young people, bring to their conceptions and use of the Internet. I address these mind-sets in upcoming chapters to highlight the ways in which governments and schools continue to apply outdated approaches to controlling cyberspace. My use of the plural “technologies” compared with the use of the singular “it” is purposeful and will make sense to readers when I discuss the differences between adult and student mind-sets in conceptualizing and working with new technologies.
Cyberspace cannot be controlled, and traditional school management techniques no longer work. Technologies can, however, provide many useful and collaborative avenues for educators and their students to engage in rule making and learning. It is for these reasons that I place greater attention on institutional and educator responsibilities that reside in substantive law than positivist and punitive approaches that reside in criminal law. Hence I argue against kneejerk reactions to cyber-bullying (or online antiauthority student expression), no matter how insulting and defamatory they might be. Although many aspects of cyber-bullying are clearly criminal in nature and would most likely be subject to prosecution if brought before the courts (such as threats of violence, criminal coercion, terrorist threats, stalking, hate crimes, child pornography, and sexual exploitation), I have focused greater attention on the institutional responsibilities of schools to educate students to become contributing and civic-minded citizens. I advocate avoidance of legal avenues that put young people through the criminal justice system, along the lines of Robert DiGuilio’s (2001) frustration that we “medicate” and “litigate” students far too much instead of educating and caring for them.
By reviewing established and emerging law, I draw attention to a need for guidelines that will help schools adopt educational means to prevent and reduce cyber-bullying. Early indications suggest that zero-tolerance suspensions and school and governmental responses tacitly condone cyber-bullying and perpetuate the problem by removing the focus from its underlying systemic causes and attempting to control its symptoms. I propose a policy approach grounded in substantive law, legal pluralism, and critical pedagogy that supports dialogue, preventative and proactive measures that will better enable children to learn and communicate in inclusive and nondiscriminatory school environments (physical and virtual).
Accordingly, my goal is to raise awareness of the key dilemmas that confront schools, students, and their parents, with a view to encourage reconceptualization of cyber-bullying toward the development of proactive and educationally and legally defensible responses. The Internet and digital literacies have become part of young people’s lives, their social relationships, and their learning. I present approaches in this book that I hope will facilitate this learning in school environments – both physical and virtual – that are conducive to children’s well-being and development as civil-minded and socially responsible, contributing citizens of a global society. It is of crucial importance that children and adults become familiar with their rights and their legal responsibilities to engage in democratic society. I propose that we engage young people to develop the rules, codes of conduct, and legislation to meet constitutional, human rights, and legally pluralistic frames of reference. More specifically, the policy guidelines are informed by the following legal considerations.
Within the context of two forms of cyber-bullying, peer-to-peer and antiauthority cyber expression, this book joins a body of emerging work on legal issues relevant to cyber misconduct and its impact on student safety and learning in the school context. Most cases are from the United States and Canada (Balfour, 2005; Servance, 2003;Willard, 2003), although I also bring in specific examples of responses (legal or policy) that are beginning to surface in various countries. As already mentioned, at this stage, my legal research in other countries is just beginning. It builds on my own previous work that examines the legal considerations relating to defamation and cyber libel; freedom of expression and safety under the Canadian Charter of Rights and Freedoms; Canadian human rights law and American civil rights law (Title IX) on Internet sexual harassment; potential school liability under Canadian and American tort law; and finally international conventions relating to children’s rights (Shariff, 2004; Shariff & Gouin, 2005; Shariff & Strong-Wilson, 2005).
North American laws are largely derived from British common law, which continues to be applied in most postcolonial countries across the globe. Therefore, although I rely for the most part on the North American jurisprudence and legislation in this book, the policy guidelines that I develop to inform solutions to these issues are pertinent to the international context. Countries such as India, Japan, Britain, Australia, South Korea, and New Zealand work within similar legal frameworks and can also benefit from an appreciation of applicable legal frameworks and judicial trends. Research projects are emerging worldwide to examine how young citizens in various countries are adapting to and using technology. The way in which schools as institutional agents of the political and social orders of each country respond also has yet to be assessed.
As far as my own international research project on cyber-bullying is concerned (http://www.cyberbullying.co.nr) I will, subsequent to publication of this book, be working with international collaborators to compile a separate and updated publication. Our publication, to be launched in 2008–9, will contain focused chapters on the profile, extent, and responses taking place in each country involved in our project. Our edited publication will include academic papers to be delivered at an international conference to be held jointly with NetSafe, a nonprofit organization in New Zealand, in July 2008.
In the meantime, it is nonetheless important to consider how North American and British courts have addressed the complexities of free expression, privacy, cyber libel, and responses to student expression, especially in terms of the legal obligations to supervise expression on and off campus. Given that so few cases on traditional bullying have been settled out of court without going to trial, even fewer precedents on cyber-bullying exist at the time this book was written. Murphy’s Law might dictate that as soon as this book hits the presses, a landmark case on cyber-bullying will surface and set a legal precedent. If that happens, the new decision will be reported in journals or book chapters that follow and will add to the foundation that I provide here. For now it is possible to seek guidance from thousands of cases involving negligence in supervision on school playgrounds and field trips and cyber-libel cases involving adults and Internet use (tort law); sexual and homophobic harassment and other forms of discrimination under civil and human rights law; and freedom of expression and privacy considerations under constitutional law, particularly in cases in which the fostering of a positive school environment is concerned. These court rulings, under established and emerging law, make it possible to extrapolate and gauge the legal boundaries (or extent of authority and responsibilities) that can be expected of educational stakeholders when dealing with cyber-bullying or cyber misconduct. If we can find consistencies or trends in judicial decisions regarding the institutional and professional responsibilities of adults in school contexts and detect shifts in judicial approaches to assessing on- and off-campus technology use and supervision, we can inform the development of a framework of standards to address the existing policy vacuum.
The first of these legal frameworks is tort law (or the law to correct “wrongs” committed intentionally or unintentionally; Linden & Klar, 1994). There are two areas of tort law relevant to cyber-bullying of peers and authority figures: libel and negligence. Given that there is so much concern among school authorities about the antiauthority version of cyber-bullying on social communication networks, I begin my legal review by taking a look at the issue of libel as a tort – or wrong committed intentionally or unintentionally – and the impact of libelous comments on targets of such expression (teachers and school authorities).
As seen from the international case examples earlier in this chapter, students who post such comments insist that they have no intention of hurting or directly communicating with the teachers and school officials whom they discuss online. They explain that these comments were not meant to be read by school officials – and constituted private conversations between friends. In that context, students do not consider their actions to be cyber-bullying because the teachers are not the direct targets of harassment. Unlike peer-to-peer cyber-bullying, for which Web sites are intentionally set up for the purpose of drawing victim’s attention to his or her flaws, the expression posted about teachers are not directed to them – and therefore any harm done is unintentional. It is plausible to argue under tort law, however, that depending on a variety of circumstances, a wrong can be done to someone unintentionally (negligently) and that this can lead to liability – or a claim for compensation of the harm done. Clearly, most young people are not aware that they risk legal liability in this way, which suggests the need to educate them about how the law of torts can be applied. Few adults, with the exception of those who work in law-related fields, are aware of the liability issues involved in tort law. Upcoming chapters present the judicial perspective as it relates to the extent of school supervision responsibilities and what this might mean for supervision in cyberspace.
Constitutional Law: Freedom of Expression versus Safety and Privacy
My research to date has not disclosed any known cases specifically relating to cyber-bullying in the school context in Great Britain or in other parts of the world. Not surprisingly, however, courts in the United States, a highly litigious country, have already heard cases on cyber-bullying and applied a triumvirate of well-established U.S. judicial decisions relating to student freedom of expression, in the absence of legal precedents relating to cyberspace. I will highlight the key standards that have emerged from the judicial scrutiny of cyber-bullying in terms of the debate relating to student expression and limits on school supervision. There have been a number of mixed court rulings on the extent of school responsibilities or expectations to interfere when students engage in forms of cyber-bullying from home computers.
Human and Civil Rights Jurisprudence: School Environment
It may be some time before the Supreme Court of Canada rules on the censorship issues involved in cyber-bullying because such cases are generally brought under tort law for negligence and under human rights law. This does not suggest that constitutional or quasi-constitutional considerations are not implied or expected. A number of Canadian human rights and American civil law cases on sexual harassment – for example, Robichaud v. Canada (Treasury Board) – have ruled that institutions are responsible for providing safe environments for their employees even if the sexual harassment by a coworker occurs outside of the workplace.
One of the points I make in support of my arguments for an improved understanding of law in education, particularly as it relates to cyber-bullying, is that just because law may not be obvious does not mean that legal rules do not inform every aspect of social life and learning. As I work through and present the range of applicable legal frameworks in this book, I provide evidence to show why a singular, legally positivist approach to addressing cyber-bullying ignores the fact that various legal principles and normative rules work together to influence how people act or express themselves in certain contexts. Hence, there is the need to pay attention to young people’s notion of identity, how that identity changes on the Internet, and the agency that they use to communicate and express themselves online compared with in cyberspace.
I argue that to change the way children behave online toward one another and toward their authority figures, we are engaging in a law reform practice. In doing so, it is essential to ask which existing laws and policies work best to address considerations of agency, context, and identity. What we must ask ourselves is which policies are workable and how do we implement them? At the end of the day, any policies grounding laws on the issue of cyber-bullying must
be informed by the interactions of students themselves. At the same time, such laws ought to respect students’ autonomy but, more fundamentally, respect their inherent human dignity. To that end, I will conclude with a combination of legal standards and models that inform a critical legal literacy and legally pluralistic approach to teacher education and professional development that I argue show greater promise to help educators navigate the policy vacuum of cyber-bullying.
Before we turn to these issues, I would like to introduce readers to a general understanding of the nature of traditional bullying, its forms and profile, and the conditions under which it occurs, as it has been studied within the paradigms of developmental psychology and sociology. The profiles of traditional and cyberbullying that I present in Chapter 2 establish the devastating impact of bullying and cyber-bullying, which have tragically taken the lives of many young people through suicide and even murder. I have researched the subject sufficiently to understand the deep and lasting psychological consequences of bullying and cyber-bullying on children and adults who are victimized, especially at the hands of large groups of peers or unknown individuals on the Internet.
Although I fully support a need for some form of consequences for those who engage in cyber-bullying, I contend that we place too much emphasis on positivist legal forms of discipline and punishment after the fact. I would like us to think about long-term proactive responses that are rooted in the fundamental principles of democracy. These might not have immediate impact but over time should make their mark more permanently. This approach will make better sense to readers after they have an improved understanding of bullying and its discriminatory nature. I proffer that in many educational institutions, what some scholars describe as “systems of oppression” sustain racism, sexism, homophobia, and ableism and intersect and interlock (Razack, 1998) to perpetuate bullying and marginalize some students more than others. When considered in these terms, it becomes easier to appreciate why constitutional and human rights considerations are more important to policy responses than legally positivist responses that are generally rooted in criminal law. It is to this profile of bullying and cyber-bullying that I now turn.