1 Jenni Pendergast – Legal Services Directorate Staff Development Day Club Macquarie, Argenton 29 April Legal Issues Cyber bullying Duty of Care & LiabilityJenni Pendergast – Legal Services Directorate
3 What is cyber bullying?Bullying using text or images posted on personal websites or sent by mobile phone or .Depending on the nature of the material posted or transmitted, people who engage in cyber bullying may be committing a criminal offence.“Police v Gabrielsen  SASC 39 (25 March 2011, David J)In this appeal, the Court found that any fear of being embarrassed was sufficient - it did not have to be a fear for personal safety.”See Legal Issues Bulletin 42.
4 Who has an account? Facebook MySpace Twitter YouTube Used with mobile phonesDo you have any students or parents as “friends”
5 Legal Risks Arising from Bullying Behaviour Could Include Civil Liability arising from a breach of the duty of careOHS prosecutions and InquestsCriminal Law breachesDiscrimination complaints and litigationWorkers Compensation claimsDisciplinary action and breaches of child protection legislation
6 Let’s use Facebook as an example Facebook has more than 500 million active users. Anyone over 13 years with a valid address can become a user. Increasingly popular with younger students Users can add friends, send them messages and update their personal profiles to notify friends about themselves. Additionally, users can join networks such as school or college walls.
7 A school wall – a public place for people to contribute / post comments. No control over who contributes or what.Note the thread of the comments. Is it appropriate? Are there any legal risks for the school?
8 What action should be taken? Is this safe?Is it appropriate?What action should be taken?Look at the mixed ages of those contributing to this wall and think about the cyber safety and other legal issues.
9 Facebook uses US Privacy legislation to control what actions it will take against its users. Facebook will not give you information or take action unless there is a breach of one of their user terms of agreement. These include:Not upload viruses / malicious code.Not access someone else’s account.Not bully, intimidate, or harass any user.Not post content that is hateful, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence.
10 Tools & Resources for Parents, Teachers, and the Community regarding Safety https://www.facebook.com/#!/safety
11 What do you do with an impostor profile? If someone has created an account to impersonate or imitate you:Go to the timelineClick the and then select Report/BlockSelect Submit a ReportChoose This person is impersonating someoneFollow the on-screen directions to complete your reporthttps://www.facebook.com/help/report/without-account#!/help/ /
12 Reporting Facebook abuse? The most efficient way is to report in the same place it occurs eg if you receive a harassing message in your InboxDo this by useing the "Report Spam or Abuse" button that appears at the top of a post as a “v”or as an “action” at the top of the page next to their name.Reports are confidential and the user being reported does not know. After a report is submitted, Facebook investigates the issue and makes a determination about whether the content should remain on the site based on their Statement of Rights.
13 What do I do if someone is attacking me in a public forum? Block the person by listing his or her name in the "Blocking People" box at the bottom of the Privacy Settings page.If this does not resolve the problem, report the user by clicking the 'Report/Block this Person' link that appears at the bottom of the user's profile.
14 Reporting an underage user Facebook claim they will promptly delete the account of any underage user that is reported through this form.
15 Cyber BullyingUse your student discipline policy if the offender is a school studentAcceptable usage for school students https://detwww.det.nsw.edu.au/policies/general_man/general/accep_use/PD _i.shtmlBlock Department access if websiteContact PoliceInformation and advice can be obtained from the Commonwealth’s Government’s cyber[smart:] website
16 Cyber Bullying How can the Department assist? IT HelpServices can take action to block school and/or access to the site.Ph:Department cannot directly close down the site. This is a matter for the site host.Acceptable usage for school students https://detwww.det.nsw.edu.au/policies/general_man/general/accep _use/PD _i.shtml
17 Legal Issues - A word of caution and attribution This presentation is not intended to be legal advice.A small change in facts or circumstances can have a very different outcome.Legal advice should always be sought in each specific set of circumstances as the legal requirements may vary.
18 Some Proactive Strategies to Discharge the Legal Obligation to Deal with Bullying Behaviour An effective response to bullying behaviour requires a partnership between parents, students, education providers and othersKeep communication lines open with parents, provide them with information and notify them promptly about any issuesHave readily available school based policies in place dealing with a range of issues including enrolment, anti-bullying, student discipline and welfare, anti-racism and discrimination and use of technology including mobile phones.The school’s WHS committee should consider whether the on-line environment at the school exposes students to any risk
19 Responsive (for serious cases) Do you know or suspect you know the culprit?If so, request removal of offensive material and conciliation/mediation (if appropriate) consider disciplinary action against students or staff consider legal action in relation to parents or 3rd parties (eg AVO, Inclosed lands Act letter, limitation of communication, personal defamation action) consider police action (eg for threats, intimidation or harassment)If not, request take down by Internet Service Provider (may not be legally enforceable, especially for international providers)In either caseBlock siteDiscourage private access to it by relevant staff/students(where appropriate) publish material that refutes false claimsMake relevant announcements within school community, student meetings, parent meetingsProvide student welfare support(eg counselling, mentoring, peer mediation)Provide staff welfare support (eg mentor counselling, Employee Assistance Program, peer support)Other steps appropriate to the case?
20 Further InformationLegal Issues Bulletin no 34 - Defamation Legal Issues Bulletin no 42 - Issues for Staff Subject to cyber bullying and related behaviour https://detwww.det.nsw.edu.au/lists/directoratesaz/legalservices/ls/legalissuesbul/bulle tinsissued/index.htm Dealing with inappropriate content on YouTube https://detwww.det.nsw.edu.au/it/learnsyssupport/media/downloads/fib/content_yout ube.pdf Behaviour programs for students https://detwww.det.nsw.edu.au/lists/directoratesaz/stuwelfare/behaviourprgms/antibul lying/index.htm Frequently Asked Questions about internet sites – ITD https://detwww.det.nsw.edu.au/it/learnsyssupport/fib/faqs.htm DEC Social media and technology – When staff become targets online https://detwww.det.nsw.edu.au/deptresources/templates/socialmedia/digitalcitizenship /yr2010/teachers-online.htm
22 Duty of Care A duty of care is owed by the State and its teachers to students.What is a duty of care?This is a duty to take reasonable care to protect students againstrisks of injury that are reasonably foreseeable.How and when does a duty of care arise?No particular time or place.It exists when the pupils are under care and supervision ofteachers at school.Two significant areas:Instruction of studentsSupervision of students
23 Duty of Care What is reasonable? It is not a duty to prevent all injury or harm, but rather to dowhat is reasonable/common sense in each situation.What is reasonable depends on the circumstances, takinginto account such things as age, ability, development,environment, student numbers and departmental policies.
24 Duty of Care Teachers must provide effective supervision of students: during the teaching and learning process;during activities within the school grounds and buildings;when students are participating in school excursions, sporting activities and other activities organised by the school;if considered necessary, before and after school when students are arriving and departing by bus or when crossing a busy road near school grounds.
25 Duty of Care Geyer and Downs and Anor (1977) 138 CLR 91 (High Court) Facts8 years old child injured before school in playground.Accident occurred at 8.50am.School gates usually opened 8.15am.Supervision of students began at 9.00am.Principal aware that by 8.30am between 100 and 150 students in the playground.Playground not supervised at the time of the accidentCourt held duty of care owed outside school hours. Principal opened gates for students to enter grounds and should have taken measures reasonable in the circumstances to prevent physical injury to students.
26 Duty of Care Richards v State of Victoria (1969) VR 13 Facts: School student S aged 16 had a fight with another student in classroom , the teacher took no steps to stop the fight.S received serious injuries resulting in spastic paralysis.Court held that in general a schoolmaster owes to each of his pupils whilst under his control and supervision a duty to take reasonable care for his/her safety. One reason given for the duty during school hours was that the child is beyond the control and protection of his parent and is placed under the control of the schoolmaster who is in a position to exercise authority over the pupil and afford him/her protection from injury.
27 Possible Consequences of Breach of Duty of Care For the DepartmentSued by injured partyProsecution under WH&S ActFor the EmployeeDisciplinary action: penalties range from caution todismissal from employment (Teaching Service Act1980);Criminal charge - neglectful act causing grievous bodily harm (Crimes Act 1900)
28 Legal Liability and Rights of Teachers in Relation to Serious Incidents Key Reference Material:Legal Issues Bulletin No 19 – Legal Liability and Rights of Staff in Relation to Serious Incidents Which Involve Potential Risk of Injury to Persons on Departmental Premises
29 Legal Liability and Rights of Teachers in Relation to Serious Incidents To Meet Duty of Care:Demonstrate systems are in place to identify risksPrecautions taken to avoid or minimise risksPotential hazards cannot be ignoredApply relevant policies, guidelines and systems.
30 Legal Liability and Rights of Teachers in Relation to Serious Incidents To Meet Duty of Care:Safeguard students – however staff should not place themselves in risk of harm. Steps taken depend on the circumstances including:Age and size of persons involvedAge and size of staffNumber of persons involvedNumber of staff
31 Legal Liability and Rights of Teachers in Relation to Serious Incidents Physical intervention by staff:Force used must be reasonable in the circumstancesForce used must be proportionate to the threatProvided staff act within policy and without serious or wilful misconduct they will be indemnified in the event of civil litigationSee Legal Issues Bulletin No. 9 - Physical restraint of students
32 Liability of TeachersCommon law principle reinforced by Employees Liability Act 1991 which provides that employers are liable even for negligent acts of employees.Vicarious LiabilityThis means that if a teacher is found by a court to have acted negligently in the course of their duties, the employer (the Department) is liable to pay the damages, not the teacher.Serious and wilful misconduct.