Education Law Articles - Information Technology

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Cyber Bullying

Cyber bullying is bullying carried out with the aid of recent technologies such as the internet (e-mails, chat rooms, discussion groups, ‘MySpace’ and instant messaging) and the mobile phone (texting or short messaging service (SMS)). These technologies allow the bully (or a group of bullies) to intimidate other students, for example, by:

• teasing and making fun of them online;
• spreading rumours about them online;
• insulting and ridiculing them in chat rooms (known as “flaming”);
• putting photos of them on the web accompanied by nasty comments;
• tricking them into sharing private information and then sharing it online;
• sending unwanted messages.

In a paper delivered in 2007 (which is available to download from the Education and Schools page of Emil Ford’s website www.emilford.com.au), David Ford discussed the potential for a school to be liable to students who have been the subject of cyber bullying. He then recommended that schools take the following steps to protect students and to minimise the risk of liability:

• Learn about cyberspace & about cyber bullying
• Amend your policies
• Train your staff
• Implement bullying prevention activities
• Educate and warn your parents
• Educate and warn your students
• Strengthen your pastoral care programs
   

Email Policy

Schools may find themselves liable if they are found vicariously responsible for the actions of staff through their use of the internet or email. Staff usage of the school's computer network system using the school's email address can make the school responsible for their employees' actions. The school may escape liability if it can show reasonable steps have been taken to prevent staff from breaching the law.

The common practice of sending jokes or pictures by email may expose schools to risks in the areas of discrimination and sexual harassment. Both federal and state law prohibits discrimination on the grounds of race, sex, transgender status, marital status, pregnancy, responsibilities as a carer, disability, sexual preference, age and HIV/AIDS status. Schools could also be exposed to defamation claims as a result of emails sent by staff.

Accordingly, there should be regular training for staff about appropriate use and management of emails. Staff must be made aware of what the school expects of them. They should also be told that their work and correspondence may be inspected.

A good email policy is essential. It may be part of a general IT policy or could be in the school's harassment policy. Like other important policies (e.g. child protection), the email policy should be given to all staff when they start their employment. They should sign to acknowledge that they have read and understood its terms.
 

Spam

The Spam Act 2003 (Cwlth) sets up a scheme for regulating the sending of commercial electronic messages. Generally speaking, the Act:

1. regulates commercial emails;
2. prohibits the sending of unsolicited emails;
3. requires functional unsubscribe facilities to be included in commercial emails; and
4. prohibits the use of address-harvesting software.

"Address-harvesting software" is software used for searching the internet for electronic addresses, and collecting, compiling, capturing or otherwise harvesting those addresses.

"Commercial emails" are basically messages sent for a purpose which includes advertising or assisting or enabling a person, by deception, to dishonestly obtain a gain from another.

Schools may send unsolicited commercial emails and may send commercial emails without an unsubscribe facility if:

1. the school authorises the sending of the message; and
2. either or both of the following applies:
   
   (a) the relevant electronic account-holder is, or has been, enrolled as a student in that school;
   (b) a member or former member of the household of the relevant electronic account-holder is, or has been, enrolled as a student in that school; and
    
3. the message relates to goods or services; and
4. the school is the supplier or prospective supplier of the goods or services concerned.

The message must only contain factual information, with or without directly related comment, and the following:

1. clear and accurate identification of the school including the school's logo;
   the name and contact details of the author of the message; and
2. accurate information about how the recipient can readily contact the school.

The information in the message must comply with the condition(s), if any, specified in the regulations and the information must be reasonably likely to be valid for at least 30 days after the message is sent.

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