Duty of care

Both Australia and the United Kingdom recognize that certain relationships give rise to so-called nondelegable duties of care. The relationship of school authority/teacher and pupil is one such relationship (Commonwealth v. Introvigne, 1982). This means that while responsibility for taking precautions against harm may, as a matter of fact, be delegated (for example by a school authority to a school principal), the school authority remains ultimately responsible as a matter of law and cannot escape liability simply by saying any breach was by its delegate and not by it. This duty extends to taking reasonable precautions against both physical and psychiatric injury (Cox v. New South Wales, 2007; Phelps v. Hillingdon London Borough Council, 2000).

While the existence of the duty of care is well recognized, greater uncertainty attends the exact scope of that duty, both in a geographical and temporal sense. Significantly for cyberbullying, which not infrequently happens away from school and out-of-school hours, it would appear that in both Australia and the United Kingdom, a school's responsibility can extend beyond the schoolyard and before and after the school bell. An English appellant judge observed, “One can think of circumstances where [the duty] might go beyond [the school gates], for example if it were reasonable for a teacher to intervene when he saw one pupil attacking another immediately outside the school gates” (Bradford-Smart v. West Sussex County Council, 2002). In the High Court of Australia case Geyer v. Downs (1977), it was held that the scope of a school's duty of care could extend to before and after school hours and depended upon “whether in the particular circumstances the relationship of school teacher and pupil was or was not then in existence.” In another Australian case, a school was held liable where it knew that young students from a primary school and older students from a high school were gathering at the same bus stop after school and as a result of tensions between the groups a 12-year-old from the former group was struck in the eye with a stick thrown by a student from the latter group. The New South Wales Court of Appeal held that the extent and nature of the duty of a teacher was dictated by the particular circumstances, rather than the ring of the school bell or the closing the school gate, and here the school authority had breached its common law duty because it ought to have known of the mischief that was likely when children of different ages and from different schools mix without adequate supervision (Trustees of the Roman Catholic Church for the Diocese of Bathurst v. Koffman, 1996). The court went so far as to suggest that depending on the circumstances the common law duty of care could extend to students on a journey on a bus or while they were walking to or from school if the school authority were aware that “on that particular journey of the children habitually and violently bullied younger children” (Trustees of the Roman Catholic Church for the Diocese of Bathurst v. Koffman, 1996, p. 63, 597). The court thought that such a duty would be founded in the relationship of teacher and pupil and that in such case may well extend as far as to require the school to take preventative steps or to warn parents.

The significance of these cases lies in recognition that a school's duty of care toward its students is not limited to occurrences on school grounds and during school hours. Depending on the circumstances, it may extend to off-campus behavior by its students, particularly in the case of Australia where the relationship of teacher in pupil is in existence. That might, for example, mean that a duty of care may arise in relation to cyberbullying where the school has policies, which seek to dictate what may be regarded as acceptable behavior by its students both on and off school grounds and inside and outside of school hours.

However, a further layer of complexity arises in the case of psychiatric injury, which will generally be the kind of harm resulting from cyberbullying. In addition to the recognized duty of care owed by schools and teachers, targets need to show that it was reasonably foreseeable that a person of “normal fortitude” would suffer that type of injury in their circumstances, although different jurisdictions take different approaches to this consideration (Butler et al., 2010). Thus, in most Australian jurisdictions the “normal fortitude” test is a precondition to liability by virtue of the Civil Liability Act in those jurisdictions, while under the common law in Queensland and the Northern Territory the “normal fortitude” issue is merely only one of the range of matters to be taken into account when considering whether harm was reasonably foreseeable in the circumstances (Tame v. New South Wales, 2002). In the United Kingdom, there are differing views whether “normal fortitude” is a precondition or merely a relevant consideration (United Kingdom Law Commission, 1998). In any event, in as much as society is made up of people with varying susceptibilities to trauma (Chadwick v. British Railways Board, 1967), a “normal fortitude” test has no medical legitimacy: there is no such thing as a “normal” person, even less a “normal” child. At best, therefore, the test can be no more than a matter of impression in any given case rather than a question of science.

Breach of duty

Merely because a school owes its students a duty of care does not mean that the school authority is an insurer of its students. Instead it is a duty to take reasonable steps to protect the student against risks of injury, which are reasonably foreseeable (Richards v. Victoria, 1969). Under the common law in the United Kingdom and now under the Civil Liability Act in each Australian State and Territory, this in turn raises two issues: (1) whether the risk of injury was reasonably foreseeable in the circumstances, and (2) what precautions (if any) a reasonable person would have taken to avoid that risk in the circumstances, taking into account the probability that harm would occur absent care, the likely seriousness of that harm, the burden of taking precautions, and any social utility of the risk creating activity. The risk of harm arising from bullying is now well known in school settings (Oyston v. St Patricks College, 2013), with most cases instead turning on whether in the circumstances reasonable precautions were taken to avoid that harm from arising. The same will likely be the case with cyberbullying.

When addressing the second question, courts in the United Kingdom adopt the so-called Bolam rule, which requires a standard of care that is in accordance with a responsible body of opinion, even if others differ in opinion (Bolam v. Friern Hospital Management Committee, 1957). All six of Australia's States (but not the two Territories) adopted this test by requiring the court to defer to a “reasonable body of opinion” but added the caveat “unless no reasonable court would do so” in their Civil Liability Acts, although Western Australia limited this test to medical professionals. In other words, when deciding whether the school authority or teacher was in breach of the duty of care, the question will be whether the response was in accordance “with that which might have been acceptable at the time by reasonable members of the teaching profession” (Gower v. London Borough of Bromley, 1999, p. 359). Decisions in cases involving face-to-face bullying provide guidance concerning what may be reasonably expected of a teacher and school. At an institutional level, schools would be expected to have antibullying policies (Smith, 2008; Stoltz, 2007). Such policies should specifically refer to cyberbullying, as an important measure to address the attitude of some students that behavior amounting to cyberbullying is merely a matter of having fun (Butler et al., 2011). The policies must be unambiguous in their terms and well disseminated among students, staff, and parents (Faulkner v. London Borough of Enfield and Lea Valley High School, 2003; Oyston v. St Patrick's College, 2013). At an individual level, complaints must be handled strictly in accordance with school policies rather than, for example, by an exercise of discretion (Oyston v. St Patrick's College, 2013). That will include taking complaints seriously, and properly documenting and investigating them (Cox v. New South Wales, 2007; Scott v. Lothian Regional Council, 1998). In addition, where the circumstances warrant remedial action, it must be taken in a manner, which is consistent, or students who cyberbully may regard any policy as merely words without substance (Butler et al., 2011). As already noted, the law places no significance on labels or the definitions applied by researchers. Accordingly, in some circumstances, it may regard a failure to appropriately deal with a one-off incident as amounting to a breach of the duty of care.

Some measures may not yet be sufficiently widespread as to reflect accepted teaching practices, such as banning the use of smartphones at school (Butler et al., 2011). Apart from anything else, banning phones at school would not prevent them being used to bully out-of-school hours (Grigg, 2010). However, that is not to suggest that over time a new practice cannot come to be widely accepted and thereby be regarded as representing part of an expected response to the risk.

Damage

There must be a causal connection between the breach of duty and the injury suffered (Faulkner v. London Borough of Enfield and Lea Valley High School, 2003). In other words, the breach of duty must have caused the harm in the sense that it would not have occurred “but for” the breach, or alternatively the breach “materially contributed” to the harm. This can be an important consideration when dealing with claims of cyberbullying of students since many of these symptoms associated with psychiatric injury such as mood swings, depression, anxiety, and poor academic results may be attributable to other causes associated with growing up, or as a result of unrelated difficulties in the family situation (Kift et al., 2010). That said, if the failure to prevent cyberbullying by the school authority or teacher is judged to have contributed to the harm suffered, that will be sufficient (Butler et al., 2010).

Common law duty of care and sovereign immunity

The United States does not recognize a nondelegable duty owed by a school to its students as such. Instead it must be shown that the school owed a duty of care to the particular student who has been bullied. Generally speaking, absent a special relationship, there is no obligation on a person to prevent another person being injured by a third person (Burns v. Gagnon, 2012). Further, also absent a special relationship the “public duty” rule provides that government entities (like public schools) and their employees act for the public at large rather than owe a duty to specific individuals (Burns v. Gagnon, 2012). However, in some States, it has been recognized that at common law a special relationship exists between a school district and a student, which results in a duty on the school district to take all reasonable steps to protect its students, either because of the compulsory nature of education and the right of students to an environment fit for learning (Rodrigues v. Inglewood Unified School District, 1986) or because the school has custody of the student while at school (Burns v. Gagnon, 2012). Alternatively, the special relationship may arise by virtue of a statute, in which case its scope depends upon the specific wording of the statue. Indeed, in some States, it has been held that no such special relationship can arise via common law and must instead be imposed by statute (e.g., Silano v. Board of Education, 2011).

Nevertheless, a further difficulty arises in the form of a doctrine known as “government immunity” (or “sovereign immunity”), which holds that school districts, principals, and teachers are generally entitled to immunity from personal liability in tort for discretionary acts or omissions in the course of their employment (Albers v. Breen, 2004). For example, the way a principal responds to a complaint of cyberbullying may be regarded as a discretionary act because it involves balancing competing interests, including confidentiality and the appropriate punishment (Albers v. Breen, 2004). Different States take different approaches to this immunity, ranging from Georgia, which provides that it can only be waived by way of a statute enacted by the legislature, to States which provide that that immunity applies provided the legislature has not expressly denied it, and those that apply the immunity subject to exceptional cases such as where the failure to act would subject a specific person to imminent harm (Fenn, 2013).

Statutory intervention

Publicity given to numerous incidents of bullying and their tragic consequences has resulted in public pressure on lawmakers to respond, spawning what Fenn (2013) described as a “national boom” in antibullying legislation. Statutes dealing with bullying exist at both State and local levels, but vary widely in their terms (Beckstrom, 2008), creating a “complex, varied spectrum of State statutory schemes” (Fenn, 2013, p. 2753). For example, as at January 2016, only 23 States expressly included “cyberbullying” in their legislation, although 48 referred to electronic harassment, which may include bullying using electronic means (Hinduja & Patchin, n.d.).

Some States have enacted very detailed provisions. For example, Florida passed the Jeffrey Johnson Stand up for All Students Act that prohibits bullying, which is expressly defined as including cyberbullying (which is itself extensively defined), of any student or employee. It includes cyberbullying on campus, during school- sponsored activities, through technology accessed via a computer within the school or at a nonschool-related location or using nonschool equipment if the communication “substantially interferes with” the victim's ability to participate or benefit from services, activities, or opportunities offered by the school or substantially disrupts the “education process or orderly operation of the school.” It also requires all public schools to adopt and review at least every 3 years an antibullying policy in conformity with the Department of Education's model policy, and that contains certain minimum components such as:

● a prohibition of bullying;

● the consequences for a student who bullies;

● a procedure for receiving reports (including provisions permitting a person to anonymously report an act);

● procedures providing for prompt investigation of a report of bullying, immediate notification to parents of the victim and for regularly reporting to parents on actions taken to protect the victim;

● referencing of victims and perpetrators to counseling;

● programs of education concerning bullying for students, parents, teachers, school administrators, and counseling staff; and

● procedures for publicizing the policy.

Other states have differing levels of detail in their statutes. Indeed only 14 states extend the school's power to discipline students for off campus behavior (Hinduja & Patchin, n.d.). The State of Montana is the only State that currently has no statutory requirement for schools to have antibullying policies at all.

One significance of statutes such as that in Florida is that, depending upon the words of the legislation, investigation of complaints of bullying can no longer be characterized as a discretionary act, so that the government immunity no longer applies (Fenn, 2013). Further, depending upon the exact wording of the statute, it may prescribe a more specific kind of duty than the general common law standard of care noted earlier. In such a case some courts allow the plaintiff to show breach of duty merely by showing that the statute was contravened, while others allow contravention of the statute to be relied upon as evidence of breach of duty (Fenn, 2013).

First amendment obstacles

A further complication arises by virtue of the First Amendment guarantee of freedom of speech, which by the Fourteenth Amendment also applies to state laws. In other words, a law such as that enacted in Florida, which prohibits cyberbullying may be seen as infringing the cyberbully's freedom of expression and for that reason be deemed to be invalid (King, 2010; Sumrall, 2016). It has been held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (Tinker v. Des Moines Independent Community School District, 1969, p. 506).

There has yet to be a United States Supreme Court ruling on the constitutional validity of cyberbullying laws (Sumrall, 2016). Until there is such a ruling, lower courts that are called upon to consider the question only have a quartet of Supreme Court decisions concerning the exercise of free speech in a school context in other circumstances to guide them. The most influential decision, Tinker v. Des Moines Independent Community School District (1969), held that the suspension of several students from school after wearing black armbands to protest the Vietnam War contrary to a school's policy against wearing armbands infringed their First Amendment rights. This was because wearing the armbands did not “materially and substantially” interfere with the requirements of appropriate discipline at the school, and did not invade the rights of other students. This ruling has since been described as the “magna carta of students' expression rights” (McCarthy, 2007, p. 15).

By contrast, in Bethel School District v. Fraser (1986), the Court upheld the suspension of a student who, when delivering a speech at a school assembly nominating a fellow student for Student Body Vice President, referred to the candidate in terms of an “elaborate, graphic and explicit sexual metaphor.” The Court distinguished these facts from those in Tinker because the speech here involved more than passive, undisruptive conduct but instead could have been seriously damaging for an immature audience since it glorified male sexuality and insulted teenage girls. It held that public schools had a responsibility to instill fundamental values of “habits and manners of civility” upon their students. Similarly, in Hazelwood School District v. Kuhlmeier (1988), the Court upheld the acts of a principal who refused to allow students to include an article on teen pregnancy and another on divorce in the school newspaper on the ground that they were topics that were not appropriate for younger students and his concern that the students and their parents who were referred to in the articles, while not named, could nevertheless be identified from their contexts. Rather than apply the Tinker standard, the Court noted that the newspaper was published as part of the school curriculum, largely controlled by the school and designed as part of the student's training and held that public schools could prohibit students' speech in such a school-sponsored activity if the restriction was “reasonably related to legitimate pedagogical concerns.” Finally, in Morse v. Frederick (2007), the Court held that a school was entitled to suspend a student for holding up a banner promoting illegal drug use at a school-sponsored trip to watch the Olympic torch relay. Rather than review the Tinker standard, as some scholars thought the Court was going to do (e.g., McCarthy, 2007), it simply noted that Fraser had shown that the Tinker standard was not absolute and that in light of the dangers of drug usage and the prevalence of drugs schools have the right to prevent speech that could be viewed as promoting illegal drug use.

This sum effect of these cases is that lower courts in the United States have no clear direction when dealing with First Amendment arguments in cases involving action taken against cyberbullies. For example, as Beckstrom (2008) noted, some courts have found that websites created using home computers that make derogatory comments about other students and/or teachers have a sufficient nexus with the school campus to qualify it as speech occurring on campus, and have found that they had caused substantial disruption of school operations due to the emotional toll on staff, disciplinary problems among students caused by them accessing the sites and/or (in one case) the shutdown of the computer system to student access, which prevented them from using the computers for school intended purposes. By contrast, other courts have held that such off-campus behavior did not cause substantial or material disruption on campus because the websites in issue may have been crude and juvenile but were not obscene, were created on home computers outside of school hours and/or were not shown to have interfered with teachers' ability to teach or control their classes.

Accordingly, schools in the United States face what has been described as a “lose-lose” situation (Schultz, 2011): they may face being liable to targets of cyberbullying when they do not act sufficiently aggressively to prevent it, and being liable to off-campus cyberbullies' issue if a court decides that the school has violated their First Amendment rights (Fenn, 2013). As Fenn (2013) noted, with the threat of legal liability looming as an incentivising force, it is little wonder that when schools are pushed in both directions—to take action or not to take action—some suggest the best advice is “don't do nothing, don't do too much” (Schultz, 2011). How exactly that translates in practice as a guideline for responding to particular circumstances is far from clear.