Cyberbullying : a real and present danger

Authors

Robert Pelletier, Turtons Lawyers

Abstract

Cyberbullying has exploded across Australian schools, but exactly what are the limits of a school's or school authority's responsibility and liability for cyberbullying? Apart from the humiliation and misery that such behaviour can cause, it is a legal minefield. The author outlines what the law says, although to date there have been no decisions by Australian courts on this issue. It is necessary to go back to first principles to establish the limits of a school's legal responsibility and apply those principles by analogy to cyberbullying. The focus in this article is on negligence rather than other legal issues to do with occupational health and safety, breach of contract or defamation. Schools are obliged to provide a safe environment for students and teachers: this is their duty of care. If online bullying takes place on school premises or at school events, or involves the use of school equipment or software, the school may be liable according to the ordinary principles of negligence. When cyberbullying occurs outside of school hours, away from school premises or without use of school equipment, the school may or may not be liable depending on whether the behaviour was a continuing of such behaviour at school. Liability kicks in where the school knows or ought to have known about the risks, the risks are not insignificant and it is reasonable for the school to do something about those risks. Conversely, where there is no connection between cyberbullying and the school, and prevention or even mitigation is outside its power, then it is very unlikely that the school will have any legal responsibility. [Author abstract, ed]

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