Alex Kohn
16 November 2011

Cyber-bullying – where does a school’s duty of care end?

Alex Kohn

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A school authority owes a duty of care to students enrolled in their schools and under their control. The scope of this duty, particularly in relation to physical bullying and cyber bullying, has come under scrutiny in recent years.  There is no doubt that bullying in the school playground, if left undetected and not effectively responded to, can result in a finding of breach of duty of care by the school authority.

Where does the duty of care begin and end?

The limits of a school’s duty of care to its pupils has not been judicially defined. It is not as simple as saying the duty only commences when the bell rings for the first lesson and ends when the pupils are discharged from their last lesson for the day.

A number of decisions have provided guidance in relation to this difficult issue.

In 1977, the High Court held that the duty of a school arises from the relationship between it and its pupils and the limits of that duty will be determined by the circumstances of the relationship on the particular occasion in question. If the teacher-pupil relationship was in existence then the duty of care will apply (Geyer v Downs (1977) 138 CLR 91). In effect, the High Court was saying that the duty of care is wider than the school day and can extend to activities beyond the school gates.

This case did not deal with bullying but rather whether a school owed a duty of care to pupils arriving in the school grounds well before lessons commenced. Nevertheless, it is still a leading case in education law. It is also still the guiding principle in relation to duty of care issues, particularly before and after school liability.

Cyber bullying rarely takes place within the school grounds. More commonly, it occurs at night or on the weekend.

If the connection between the cyber bullying and the school is sufficiently strong, and the school fails to take reasonable steps to prevent its pupils being cyber bullied, a court is likely to find, in the appropriate case, the necessary degree of foreseeability, breach and causation to make an adverse finding against a school authority.

Clearly, there must be a connection more than the bully and the victim simply being pupils of the one school.

What would be a sufficient connection? I can imagine a court being likely to find a sufficient connection between the actions of the bully, the consequences for the victim and the school authority where, for example, the following situation applies:

  • the bully teases the victim at school face to face;
  • the teasing continues via sms, email, facebook or other form of social network out of school;
  • the victim reports the conduct to the school;
  • the school promises to investigate but does not do so effectively;
  • the cyber bullying continues by ongoing teasing through one of the above forms; and
  • the victim suffers anxiety and depression as a consequence of the ongoing teasing.

In such circumstances, a victim would appear to have a case against the school authority. As with all cases of this nature, it is a question of degree which will determine if the circumstances are sufficiently strong to establish a connection between the cyber bullying and the school authority. The greater the number of factors establishing such a connection, the stronger the potential case the school authority must answer.

What is not a sufficient connection?

If the school authority has no actual knowledge or nothing to put it on notice of the cyber bullying at or outside school, it is difficult to see how the duty of care espoused in Geyer could be further extended to cyber bullying merely by virtue of the bully and the victim both being pupils at the same school.

Ramifications for schools

While there is no doubt that the standard of care owed by a school authority to a pupil is a high one, the courts have been careful to appreciate the practicalities facing teachers and schools in discharging their duty of care.

Parents of course also have a role to play in the supervision of cyber bullying activities. Schools have no power to enter a pupil’s house to check on their cyber activities outside school hours. This is clearly within the purview of parents.

Whether the bullying relates to a physical incident in the school playground or a cyber bullying incident outside the school gates, it is still necessary to establish the degree of foreseeability, breach and causation in cyber bullying cases. This will depend on the nature of the relationship between the pupil and the school at the time of the alleged cyber bullying.

I am confident that courts will continue to take a practical and common sense approach to this difficult issue in relation to negligence cases against a school authority.

I was interested to learn of the recent release of the short film”Tagged” which deals with issues of the cyberbullying and risky online behaviour. This short film will be distributed by the Australian Communications & Media Authority to all schools as a Federal Government response to this difficult issue. Hopefully, it will assist pupils to understand the legal ramifications of placing inappropriate content online.

In my next Blog: I will look at how other aspects of our law (including criminal law) might assist in dealing with cyber bullying in our schools.

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