Jenni Pendergast – Legal Services Directorate

1. Staff Development DayClub Macquarie, Argenton 29 April 2013Legal IssuesCyber bullyingDuty of Care & Liability Jenni Pendergast – Legal Services Directorate

2. CYBER- BULLYING

3. Bullying using text or images posted on personal websites or sent by mobile phone or email. 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[2011] 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. What is cyber bullying?

4. Who has an account? • Facebook • MySpace • Twitter • YouTube • Used with mobile phones • Do 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 care • OHS prosecutions and Inquests • Criminal Law breaches • Discrimination complaints and litigation • Workers Compensation claims • Disciplinary 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 e-mail 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. 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 timeline • Click the and then select Report/Block • Select Submit a Report • Choose This person is impersonating someone • Follow the on-screen directions to complete your report • https://www.facebook.com/help/report/without-account#!/help/263149623790594/

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 Inbox Do 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. http://www.facebook.com/help/?faq=12264

14. Reporting an underage user Facebook claim they will promptly delete the account of any underage user that is reported through this form. http://www.facebook.com/help/contact.php?show_form=underage

15. Use your student discipline policy if the offender is a school student Acceptable usage for school students https://detwww.det.nsw.edu.au/policies/general_man/general/accep_use/PD20020046_i.shtml Block Department access if website Contact Police Information and advice can be obtained from the Commonwealth’s Government’s cyber[smart:] website http://www.cybersmart.gov.au/ Cyber Bullying

16. How can the Department assist? IT HelpServices can take action to block school and/or access to the site. Ph:1800 338 483 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/PD20020046_i.shtml Cyber Bullying

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 others • Keep communication lines open with parents, provide them with information and notify them promptly about any issues • Have 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 case • Block site • Discourage private access to it by relevant staff/students • (where appropriate) publish material that refutes false claims • Make relevant announcements within school community, student meetings, parent meetings • Provide 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 Information Legal 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/bulletinsissued/index.htm Dealing with inappropriate content on YouTube https://detwww.det.nsw.edu.au/it/learnsyssupport/media/downloads/fib/content_youtube.pdf Behaviour programs for students https://detwww.det.nsw.edu.au/lists/directoratesaz/stuwelfare/behaviourprgms/antibullying/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

21. DUTY OF CARE & LIABILITY

22. 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 careto protect students against risks 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 of teachers at school. Two significant areas: Instruction of students Supervision of students Duty of Care

23. What is reasonable? It is not a duty to prevent all injury or harm, but rather to do what is reasonable/common sense in each situation. What is reasonable depends on the circumstances, taking into account such things as age, ability, development, environment, student numbers and departmental policies. Duty of Care

24. 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. Duty of Care

25. Geyer and Downs and Anor (1977) 138 CLR 91 (High Court) Facts 8 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 accident Court 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. Duty of Care

26. 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 carefor 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. Duty of Care

27. For the Department Sued by injured party Prosecution under WH&S Act For the Employee Disciplinary action: penalties range from caution to dismissal from employment (Teaching Service Act 1980); Criminal charge - neglectful act causing grievous bodily harm (Crimes Act 1900) Possible Consequences of Breach of Duty of Care

28. 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 Legal Liability and Rights of Teachers in Relation to Serious Incidents

29. To Meet Duty of Care: Demonstrate systems are in place to identify risks Precautions taken to avoid or minimise risks Potential hazards cannot be ignored Apply relevant policies, guidelines and systems. Legal Liability and Rights of Teachers in Relation to Serious Incidents

30. 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 involved Age and size of staff Number of persons involved Number of staff Legal Liability and Rights of Teachers in Relation to Serious Incidents

31. Physical intervention by staff: Force used must be reasonable in the circumstances Force used must be proportionate to the threat Provided staff act within policy and without serious or wilful misconduct they will be indemnified in the event of civil litigation See Legal Issues Bulletin No. 9 - Physical restraint of students Legal Liability and Rights of Teachers in Relation to Serious Incidents

32. Common law principle reinforced by Employees Liability Act 1991which provides that employers are liable even for negligent acts of employees. Vicarious Liability This 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. Liability of Teachers

33. QUESTIONS

34. Legal Services Directorate Department of Education and Training Levels 5 & 7, 35 Bridge Street SYDNEY NSW 2000 Ph: (02) 9561 8538 Facsimile: (02) 9561 8543 Email: legal@det.nsw.edu.au Website:http://detwww.det.nsw.edu.au/directorates/leglserv/ Contact