A group of elementary school students in Pickering Ontario in 2008 apologized for posting a video on YouTube mocking a schoolmate who had suffered a stroke. A fourteen year old student at Saskatoon’s E.D. Feehan High School found a video on the Internet that showed herself being beaten up. In Burlington Ontario, students are alleged to have set up a website called “davenightisgay” that asked participants to write what they thought of Dave Knight; students posted hundreds of anonymous abusive messages on the site, and the seventeen year old student’s family brought a lawsuit against the school board, administration and the alleged ringleaders. In 2007, nineteen students at Robert F Hall Catholic School in Caledon East Ontario were suspended after posting sexually explicit, derogatory and demeaning remarks about their principal. The school took the position that these students’ actions violated the school’s “Code of Conduct”.
Often I will hear school officials, parents and even students state that if the cyberbullying does not take place on school grounds, or if it takes place outside of the school’s jurisdiction, then the school has no part to play in dealing with the issue. To put it simply; parents, students, and even some teachers believe that schools do not have the right to intervene when the cyberbullying takes place on a home computer or cell phone off school property. Canadian jurisprudence cannot be any clearer on this issue. In her excellent book “Confronting Cyber-Bullying” Canadian Internet legal expert Dr Shaheen Shariff states:
“If there is a nexus (connection) to the school (peers, teacher, school property), then there is an absolute right to intervene”
Like it or not, teachers, parents, and students need to understand that the learning environment in today’s wired world is no longer restricted to the school. The Canadian courts have held that a school has the right to impose school discipline for conduct that occurs off school property. When a student turns to bullying behavior, there exists a legal responsibility under Common Law, Statutory duties (School Act, school’s Code of Conduct, Human Rights Code, Charter of Human Rights and Freedoms) as well as the Criminal Code for the school to respond, especially where there is a direct nexus to the school. For schools not to take action, when there is a clear nexus, places them in a possible position to be held liable in an actionable claim for negligence if they do not act quickly to protect student victims of cyberbullying. Canadian law places on teachers a duty of care that is known as “in loco parentis”. What this means is that a teacher has a “duty of care” to the student under their supervision as if they were standing in the place of that student’s parent. It is because of this fact that teachers should be cognizant of the fact that one clearly established Canadian legal jurisprudence is the legal responsibility of educators to ensure that the school does not create a hostile or “deliberately dangerous” or “poisoned” environment which prevents a conducive learning environment for a student.
Some Canadian court cases that support the fact that School Boards and employees (teachers and principals) are held to a higher standard of care include:
Meyers v. Peel County Board of Education (1981), 123 S.C.R (3d) 1, “In order to teach, school officials must provide an atmosphere that encourages learning”
R v. M.R.M., (1998) 3 S.C.R. 393 at para. 35 “ A school board has a duty to maintain a positive school environment for all persons served by it”
Each cyberbullying incident should be based on its individual facts and circumstances; but to impose school discipline there must be sufficient evidence, after a full and thorough investigation, that the online threat or intimidation was initiated by a particular identifiable student.
It is important to note, that the courts in Canada have voiced their serious concern about the implications of bullying and intimidation in our schools. The courts have indicated that given the increase in the number of bullying cases; a strong message needs to be sent to the community that this type of behavior will not be condoned. The Supreme Court of Canada has said that a threat (like cyberbullying) is a “tool of intimidation” which is designed to instill a sense of fear in its recipient. The court has asserted that the aim and purpose of the Criminal Code is to protect citizens against such fear and intimidation.
To quote Dr Shaheen Shariff one more time:
“Failure to supervise (protect) students properly can result in an actionable tort of negligence (unintentional tort). The onus is on the student who brings the claim, for example, as a victim of bullying or cyberbullying, to establish for criteria:
1) That there was a duty of care,
2) That the plaintiff experiences a tangible injury (psychological injury is harder to establish than physical injury),
3) That the injury was foreseeable by the supervisor and could have been prevented, and,
4) That the injury was caused by the actions or omissions of the supervisor
Hence in cases of peer-to-peer cyberbullying, a victim might report the bullying to the school several times, and the teachers may waive it off as nothing serious or tell the student the problem is a parental responsibility.”
According to the Canadian law firm “Evans and Philips”, in order for an actionable tort or negligence to be brought against a school there has to be:
- A nexus between the school’s conduct and the student’s injury
- A breach of a legal duty was the proximate cause of the Plaintiff’s injury
- School officials must have been found to have acted with deliberate indifference
- School engaged in intentional or reckless conduct which shocks the conscience
Evans and Philips further state:
- Schools will not be liable for an unforeseeable event or for unforeseeable intervening events.
- Boards can be liable in negligence through vicarious liability.
- School officials must have been found to have acted with deliberate indifference, and
- Schools are not required to constantly supervise students.
How Can Principals and Teachers Play A Part:
Knowing that there are Criminal, Civil, and Human Right consequences for not taking action when a student discloses that they are being targeted by others in the school, what can principals and teachers do to protect the child and shield themselves, the school and the school board from criminal and civil consequences?
- Ensure that the school has policy and a code of conduct in place that speaks to these issues which clearly mentions threats, intimidation, and harassment via mobile and wireless Internet technologies. Within the policy there should be clear consequences outlined for failure to comply with the school policy or Code of Conduct. Some consideration should also be given to having both student and parent sign the Code of Conduct. It is crucial for schools to establish and maintain a school climate of respect and integrity where any violation of the Code of Conduct will result in informal or formal sanctions.
- Educate students, parents, and teachers about the seriousness of cyberbullying.
- Where a school administrator or teacher is informed about an incident of cyberbullying involving a student, early intervention is a must.
- Conduct a thorough investigation process which should include:
- Try to get as many details about the incident as possible.
- Does the student have any fear about coming to school?
- Asking the student to prepare a written statement of the event.
- What kind of cyberbullying took place?
- Obtain copies of all relevant e-mails and/or the name of the chat room and date and time and description of the chat including full headers.
- Explore the identity of the alleged cyberbully.
- What was the background or history of the event that led to the cyberbullying if any?
- Is it an isolated incident or an ongoing situation?
- Does the student know or suspect that there are other victims?
- Interview any witnesses to the incident or other students copied on emails to texts.
- Depending upon the type of cyberbullying, interview the student responsible.
- If the cyberbullying involved threat to cause bodily harm or other types of serious threats, connect with the police and have them get involved.
- Meet with the student victim and their parents to outline what you have done and what their expectation may be to deal with the incident.
- 5. Think about having the school register with “Stop A Bully” located at http://stopabully.ca/
At the conclusion of the above noted investigation in step 4 , the school principal must now come to a conclusion about what actually occurred and who was at fault. If the cyberbullying took place off of school property, then the principal must assess whether there is a sufficient nexus or link to the school to impose school discipline if needed.
Remember, principals and teachers have a legal duty, to the extent possible, to take prompt, timely and reasonable action to deal with the issue of cyberbullying when it negatively affects a student’s learning environment. Responding quickly and effectively to allegations of cyberbullying will serve to reduce a teacher’s, school, and school board’s legal liability and assist in the creation of a safe learning and teaching environment for all students.
Ultimately taking action criminally, civilly, or via Human Rights should only be considered in the most extreme cases given the associated consequences that can take place. First and foremost we believe that our youth should be made aware that:
- Cyberbullying can have criminal consequences and explain to them what they are.
- Cyberbullying can have civil consequences and explain to them what they are.
- Cyberbullying can have Human Rights consequences and explain to them what they are.
- There is a difference between free speech, as guaranteed under the Canadian Charter of Rights, and defamation as it pertains to libel and slander.
- Schools can take action specific to cyberbullying if they can draw a nexus to the school and explain to them what those nexus are.
We also believe that consequences to actions, when it comes to cyberbullying, should be incremental in nature (depending upon the nature of the cyberbullying) ranging from; calling parents, counseling, expressions of condemnation, behavioral contracts, detention, suspension, change of school placement, expulsion, and in some cases criminal charges. As Abraham Maslow stated, “It is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” In our opinion Criminal, Civil, and Human Rights actions are a hammer and as stated earlier, should only be used in extreme circumstances.
Another avenue that I have seen used for low level first time cyber bullies is something called “Restorative Justice”; this is where the peer aggressor faces their intended victim outside the court process with a trained Restorative Justice facilitator. I have seen some amazing positive results take place in these sessions, which ultimately offers closure to the victim. The benefit to Restorative Justice is that it becomes an “educational” option, that can be used as a teaching method to help peer aggressors realize the impact of their on-line statements.
We also highly recommend that all teachers, Principals, PAC’s and School Board Trustees read Dr Shaheen Shariff’s book, “Confronting Cyber-Bullying, What Schools Need to Know to Control Misconduct and Avoid Legal Consequences”.
Ultimately remember that although schools do have a part to play when it comes to dealing with cyberbullying/digital peer aggression, as parents we also have an important part to play as well. The causes of cyberbullying/digital peer aggression are multifactoral, so to are the ways that “we” (schools, families, law enforcement) go about preventing and dealing with the issue.