1.1 WHAT IS CYBERBULLYING AND WHY DO SCHOOLS NEED TO TAKE IT SERIOUSLY?
1.1.1Cyberbullying can be defined as the use of Information and Communications Technology (ICT), particularly mobile phones and the internet, deliberately to upset someone else. As with a school’s general definition of bullying, however, it is advised that schools involve the whole school community in agreeing an accessible and meaningful definition. In this way, the school will secure greater awareness of the phenomenon and buy-in for its overall policy and strategies to tackle cyberbullying.
1.1.2Cyberbullying is a sub-set or ‘method’ of bullying. It can be used to carry out all the different ‘types’ of bullying (such as racist bullying, homophobic bullying, or bullying related to special educational needs and disabilities), but instead of the perpetrator carrying out the bullying in person, they use technology as a means of conducting the bullying. Cyberbullying can include a wide range of unacceptable behaviours, including harassment, threats and insults. And like face-to-face bullying, cyberbullying is designed to cause distress and harm.
1.1.3Cyberbullying can be an extension of face-to-face bullying, with technology providing the bully with another route to harass their target. However, cyberbullying does differ in several significant ways to other kinds of bullying: for example, the invasion of home/personal space; the difficulty in controlling electronically circulated messages; and even in the profile of the bully and target. These differences are important ones for people working with children and young people to understand (see section 1.4).
1.1.4Cyberbullying takes place between children; between adults; but also across different age groups. Young people can target staff members or other adults through cyberbullying: there are examples of school staff being ridiculed, threatened and otherwise abused online.
Quote from a head teacher: “One of my staff members was recently the victim of cyberbullying – some of the students created a web site about them which contained nasty comments and accusations…As a direct result the member of staff suffered from depression and stress, and was actively planning to leave the school. I can honestly say that this episode nearly destroyed this man”.
How common is cyberbullying?
1.1.5There have been some studies looking at the extent of cyberbullying amongst children and young people:
- Research carried out for the Anti-Bullying Alliance (ABA) by Goldsmiths, for example, found that 22% of 11-16 year-olds had been a victim of cyberbullying1.
- The MSN cyberbullying report (2006) found that 11% of UK teens had experienced cyberbullying2.
- Noret and River’s four year study on bullying (2007) found that 15% of the 11,227 children surveyed had received nasty or aggressive texts and emails, and demonstrated a year on year increase in the number of children who are being bullied using new technology.
- Research conducted as part of the DCSF cyberbullying information campaign found that 34% of 12-15 year olds reported having been cyberbullied.
- Qualitative evidence gathered by NASUWT through a survey of teachers has demonstrated that cyberbullying affects the working lives of staff and impacts severely on staff motivation, job satisfaction and teaching practice.
1.1.6Although there is variation in the figures, all the research indicates that cyberbullying is a feature of many young people's lives. There is also concern that the level of cyberbullying is increasing.
Legal duties and powers: Education law
1.1.7Bullying (and this includes cyberbullying) is never acceptable. The school community has a duty to protect all its members and provide a safe, healthy environment. These obligations are highlighted in a range of Education Acts and government initiatives (see section 2 of the overarching Safe to Learn: Embedding Anti-Bullying Work in Schools guidance).
1.1.8In addition, the Education and Inspections Act 2006 (EIA 2006) outlines some legal powers which relate more directly to cyberbullying. Head teachers have the power “to such extent as is reasonable” to regulate the conduct of pupils when they are off-site or not under the control or charge of a member of staff. This is of particular significance to cyberbullying, which is often likely to take place out of school but which can impact very strongly on the school life of those pupils involved. Section 3.4 of the School Discipline and Pupil Behaviour Polices guidance provides more advice on when schools might regulate off-site behaviour3.
1.1.9EIA 2006 also provides a defence for school staff in confiscating items from pupils. This can include mobile phones when they are being used to cause a disturbance in class or otherwise contravene the school behaviour / anti-bullying policy. More information on confiscation can be found in section 3.8 of the School Discipline and Pupil Behaviour Polices guidance4. School staff may request a pupil reveal a message or show them other content on their phone for the purpose of establishing if bullying has occurred, and a refusal to comply might lead to the imposition of a disciplinary penalty for failure to follow a reasonable instruction. Where the text or image is visible on the phone, staff can act on this. Where the school’s behaviour policy expressly provides, a member of staff may search through the phone themselves in an appropriate case where the pupil is reasonably suspected of involvement.
Legal duties and powers: Civil and criminal law
1.1.10Although bullying is not a specific criminal offence in UK law, there are criminal laws that can apply in terms of harassment or threatening behaviour. For example – and particularly pertinent for cyberbullying – threatening and menacing communications.
1.1.11In fact, some cyberbullying activities could be criminal offences under a range of different laws, including the Protection from Harassment Act 1997 which has both criminal and civil provision, the Malicious Communications Act 1988, section 127 of the Communications Act 2003 and the Public Order Act 1986. The age of criminal responsibility in the UK starts at 10.
- Protection from Harassment Act 1997: This Act is relevant for incidents that have happened repeatedly (i.e. on more that two occasions). Section 1 prohibits behaviour amounting to harassment of another. Section 2 provides a criminal offence and section 3 provides a civil remedy for breach of the prohibition on harassment in section 1. Section 4 provides a more serious offence of someone causing another person to fear, on at least two occasions, that violence will be used against them5. A civil court may grant an injunction to restrain a person from conduct which amounts to harassment and, following conviction of an offence under section 2 or 4, restraining orders are available to protect the victim of the offence.
- Communications Act 2003: Section 127 covers all forms of public communications, and subsection (1) defines an offence of sending a ‘grossly offensive…obscene, indecent or menacing’ communication6. Subsection (2) defines a separate offence where for the purposes of causing annoyance, inconvenience or needless anxiety, a person sends a message which that person knows to be false (or causes it to be sent) or persistently makes use of a public communications system7.
- Malicious Communications Act 1988: Section 1 makes it an offence to send an indecent, grossly offensive or threatening letter, electronic communication or other article to another person with the intention that it should cause them distress or anxiety8.
- Public Order Act 1986: Section 5 makes it an offence to, with the intent to cause harassment, alarm and distress, use threatening, abusive or insulting words, behaviour, writing, signs or other visual representation within the sight or hearing of a person likely to be caused harassment, alarm or distress9. This offence may apply where a mobile phone is used as a camera or video rather than where speech writing or images are transmitted.
- Obscene Publications Act 1959: It is an offence under this Act to publish an obscene article. Publishing includes circulating, showing, playing or projecting the article or transmitting that data, for example over a school intranet. An obscene article is one whose effect is such as to tend to deprave and corrupt persons who are likely to read, see or hear the matter contained or embodied in it10.
- When cyberbullying takes the form of hacking into someone else’s account, then other criminal laws will come into play, such as the Computer Misuse Act 199011, in addition to civil laws on confidentiality and privacy.
- An anti-social behaviour order (ASBO) under the Crime and Disorder Act 199812could be used for cyberbullying. An ASBO is a civil order which prohibits an individual from engaging in specific anti-social acts. An ASBO can be made against any person, aged 10 years or over, where there is evidence that their behaviour caused, or is likely to cause, harassment, alarm or distress to others and where an order is needed to protect person(s) from further anti-social acts. Whether a course of conduct is anti-social in nature is primarily measured by the consequences and the effect it has, or is likely to have, on a member or members of the community within which it is taking place. An ASBO can be used in conjunction with other measures as part of a tiered approach to tackling anti-social behaviour. Prohibitions should be precise, targeted at the specific behaviour complained of, and proportionate to the legitimate aim of protecting the community from further abuse. ASBOs can be extremely effective in preventing further escalation into criminal behaviour. Breach of an Anti-Social Behaviour Order is a criminal offence and criminal penalties apply.
- Defamation: Defamation is a civil “common law” tort in respect of which the Defamation Acts of 1952 and 1996 provide certain defences. It applies to any published material that damages the reputation of an individual or an organisation, and it includes material published on the internet. A civil action for defamation can be brought by an individual or a company, but not by a public authority. It is up to the claimant to prove that the material is defamatory. However, the claimant does not have to prove that the material is false – the burden of proof on that point lies with the author/publisher, who has to prove that what they have written is true13. Where defamatory material is posted on a website the person affected can inform the host of its contents and ask the host to remove it. Once the host knows that the material is there and that it may be defamatory, it can no longer rely on the defence of innocent dissemination in the Defamation Act 1996. This means that the person affected could (if the material has been published in the jurisdiction, i.e. in England and Wales) obtain a court order (an injunction) to require removal of the material, and could sue either the host or the person who posted the material for defamation.
Cyberbullying in the school community
1.1.12Cyberbullying is not a new phenomenon, but as mobile phone and internet use become increasingly common, so does the use of technology to bully.
1.1.13Schools are already addressing bullying, discrimination and behavioural issues. This guidance on cyberbullying is designed to help school leaders and staff who may not be familiar with the ways in which technologies are currently being used by young people, and their potential abuse.
1.1.14Taking a whole-school community approach, ensuring that the issues are discussed and the school community shares an understanding of what cyberbullying is and what the consequences and sanctions for it are, is key to effectively preventing and dealing with cases.
1.1.15A lot of the material covered in this guidance is equally applicable to the cyberbullying of school staff as to pupils. Members of the school workforce suffering from or concerned about cyberbullying can also contact their trade union or professional association for support and advice.