We are all too familiar, with the prevalence of bullying in our society. In the context of our children, that bullying, more often than not, starts in the school yard. With the new era of social networking, we have to recognise that bullying within the school yard now encompasses Cyber Bullying within Cyberspace.
Bullying is defined as unwanted negative behaviour, verbal, psychological or physical, conducted by an individual or group against another person, (or persons) which is repeated over time. Cyber Bullying is a form of online bullying that is accomplished through the posting of cruel or even threatening messages online via text messages or through social networking such as through Facebook or Snapshot. One of the most disconcerting aspects of Cyber Bullying is that it can affect children and young people at any time, day or night. Gone are the days, unfortunately when return to one’s home at the end of a school day could bring solace to a young person. Cyber Bullying can and does pursue children into their own homes.
What can or should a school do to protect against Cyber Bullying?
The short answer is that a school should have in place a procedure for dealing with Cyber Bullying. Legislation and Guidelines issued by the Department of Education & Science (DES) provide assistance in that regard. The Education (Welfare) Act, 2000 requires all schools to have in place a Code of Behaviour. The Act requires that this Code must be prepared in accordance with guidelines issued by the National Education (Welfare) Board (NEWB). The NEWB’s guidelines were issued to schools in 2008. In accordance with the Education Welfare Act 2000 the guidelines require schools to have an Anti Bullying Policy within the framework of their overall Code of Behaviour. The Minister for Education established a Working Group who, in January 2013, drew up an Action Plan on Bullying. Following on from that action plan, Anti Bullying Procedures for Primary and Post Primary Schools were developed in September 2013 which effectively obliged principals and teachers in schools to have new Anti-Bullying Procedures implemented in their schools by Easter 2014.
It is clear that the definition of bullying within these Anti Bullying Procedures includes Cyber Bullying. The aim of these procedures is to ensure that the school has in place a step by step procedure for dealing with bullying. It is vitally important that any instance of bullying (including Cyber Bullying) is dealt with by a school strictly in compliance with these procedures.
Any student or parent of a student who has been affected by Cyber Bullying may have a case against the school for negligence or breach of duty of care if they could establish, for example, that the Board of Management of the school did not adopt the 2013 Procedures (or did not comply with the procedures, if they were adopted).
On the other hand any school which can show that it has complied with the Anti Bullying Procedures may be in a position defend a case against it on the basis that it complied with the national norm. (This, of course, assumes that the 2013 Procedures are indeed adequate).
If a school is aware that Cyber Bullying is occurring and fails to take steps to counter same, then a school may be held negligent for any ensuing injury. Having a detailed Code of Behaviour (to include Anti Bullying Procedures) in place can assist in the context of defending such claims against a school.
If a staff member is aware that Cyber Bullying is occurring and takes no steps to counter same then in the event of an injury to a person as a result of that Cyber Bullying, a Court may hold that that the school is liable for the injury.
However if appropriate and adequate Anti-Bullying Procedures are in place then a staff member who takes the requisite steps in accordance with those procedures, may well be in a position to defend a case for damages on the basis that it took appropriate steps to counter and to stop that Cyber Bullying.
The steps contained within a school’s Anti Bullying Procedures are therefore extremely important and the devil will certainly be in the detail. The more steps that can be taken by a school to counter Cyber Bulling, the more, it seems to the writer, that a successful defence will be available to the school. As a minimum, Codes of Behaviour (to include Anti Bullying Procedures) should allow for the following –
A school’s Code of Behaviour (including its Anti Bullying Procedure) should clearly define Social Media.
Codes of Behaviour must be absolutely clear on its acceptance / tolerance or otherwise of social media both on and off the school premises and both within and outside of school hours. Case law does support the fact that if bullying which occurs outside the school is having an adverse affect on a child within the school, then the school may be entitled to impose a sanction for such conduct. Codes should set out when a school will or will not intervene in terms of disciplining behaviour by students outside of school / premises / hours.
Codes of Behaviour also need to be clear on sanctions to be imposed for breach of the Code and of course a school must be vigilant in imposing those sanctions.
All schools should now have in place the DES Anti-Bullying Procedures and these procedures should be brought to the attention of staff, students and parents. Schools must be vigilant in complying with the procedures. Students and parents alike should be asked to sign same on an annual basis and indeed in the event of same being reviewed at any point in time.
Although only the beginning, the procedures do seem to be a positive step towards addressing Cyber Bullying within our schools and to a lesser extent, but at least acknowledged, within our society. The effectiveness or otherwise of same, remains to be seen.
Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or [email protected] if you would like more information.
* In contentious business, a solicitor may not calculate fees or other charges as a percentage of any award or settlement.