The laws of the cyberspace in the school yard – the challenges of social media for schools and students
According to one survey of school principals conducted in 2010, the adoption of social media by schools has been far less prevalent than other sectors such as small businesses and other organisations, including not-for-profits.
Despite the many marketed opportunities for integrating social media into the learning space and using it to communicate with parents and the community, principals have reportedly been hesitant to take these steps given the significant risks involved in social media as confirmed by numerous news stories of cyber abuse and legal complications.
Whilst there are certainly numerous risks inherent in social media use, the adoption by schools of an effective legal strategy to deal with these risks and any liability can offer greater prospects of safe and beneficial social media use.
Having an effective social media policy that is well-implemented and addresses key online concerns such as cyber-bullying, defamation, intellectual property use and privacy can significantly minimise legal and practical risks for schools and allow them to draw more confidently on social media within school programs for beneficial purposes.
1. Setting a foundation
The fast-paced and multi-dimensional nature of social media makes it a difficult platform to police. Social media outlets themselves, such as Facebook and Twitter, rely on the honesty of users in relation to compliance, whether it be from the certification of minimum age requirements for using the site, to the fair use of materials including the intellectual property of other persons. The creation and use of a social media account is typically linked to consent to the social media provider’s terms and conditions and policies based on which the administrators of the social media can take action against an account-holder breaching their obligations. These measures however are limited in scope between the social media outlet and the user, often relying on reports from other users for identifying a misuse.
Having a school social media policy has therefore become an integral measure for many schools seeking to ensure that school staff, students and, to a broader extent, parents are aware of and abide by the terms of the school social media policy in respect of all interactions on social media between themselves and others in the school community or within any communications made with reference to the school or school community or during school hours.
An effective school social media policy should reiterate the broad set of school values and set specific guidelines as to the acceptable uses of social media within the school context (if possible with reference to the particular social media platforms).The guidelines may for example restrict the use of social media platforms to only those directly provided by the school or part of a learning group or other direction of a teacher, provide instructions on the types of account settings (for a relevant social media platform) that are recommended when using the social media platform in relation to school purposes and activities. This might include privacy and security settings alongside advice on sensible use of the social media with respect to sharing of information including personal information so as to maintain adequate control over it as well as the user’s privacy and the privacy of others.
Some key conduct to warn against would be spreading false or injurious information about someone, conduct that is abusive, threatening or otherwise antisocial or intended to bully, and copying or appropriating someone else’s online content including words, videos, or images. This can be reinforced with a disclaimer of school liability for any such conduct in contravention of the social media policy or any other law such as defamation, discrimination, breach of privacy or infringement of intellectual property rights.
It is worth noting with respect to the latter that there is no defence under theCopyright Act 1968 (Cth) (CA) to reproducing or otherwise using a work found without attributing it to the author. This is true even where the author, or owner of the copyright, cannot be found (after all, the author could eventually turn up to assert their copyright)
2. Monitoring and following through
Whilst many schools and organisations may have effective social media policies, they may still be exposed to the same legal risks if the policy is not properly implemented. As such, it is important that the social media policy contains within it information on how it will be administered in practice.
As a starting point, a complaints procedure should be clearly set out in the social media policy including the details of the relevant contact person (called a social media officer) who can investigate and take relevant action under the policy in respect of a complaint. Where a complaint is found valid or a breach of the policy the enforcement measures should be made clear including any involvement of the parents/guardians of the student.
Beyond responding to direct complaints, it is important to ensure that there are mechanisms for securing the cyber environment in which the school community interacts. One aspect of this is to have a system of monitoring the posts within a social media group, such as a school Facebook group, and controlling the membership and access to the group where possible through login names and passwords where possible.
Moreover, a data protection mechanism must also be extended to social media use which may contain personal information as defined within Section 6 of the Privacy Act. 1988 (Cth) (‘the Act’) and The Act contains the Australian Privacy Principles (APPs), Principle 12 of which prescribes that reasonable steps be taken to secure personal information including such personal information as may be contained in data stored or transmitted within a network. While there is no precise measure of what is reasonable in all situations, the encryption of data and de-identification of personal information when data is disclosed or shared is certainly key to ensuring compliance.
An IT acceptable use policy for all school computers and other digital equipment can assist to regulate the use of social media when the use is on school equipment and/or premises or network facilities. The NSW Department of Education has published such a policy on its website for NSW public schools, which can be found here (https://www.det.nsw.edu.au/policies/general_man/general/accep_use/PD20020046.shtml)
Finally, providing ongoing training to staff and students to ensure that all the relevant terms of the policy are understood and on what is appropriate use of the social media platforms, including the earlier described risks as to misuse of personal information, reputational harm, and intellectual property infringements.
Reviewing, consultation and updating the policy on a regular basis helps to monitor for and address any risks or areas requiring further development.
3. The strike of the cyber-bullies
The sadly commonplace problem of bullying is no different in the online context with one in every five Australian children aged 12-17 having been the target of cyber-bullying in the past year.
Cyber-bullying is a significant problem within social media contexts which can present legal risks for schools where students and/or staff are bullied by another within the school community.
To protect against liability or breach of duty of care, schools should seek to specifically address cyber-bullying in the school’s disciplinary code and social media policy by defining such conduct in clear terms and providing a procedure for reporting, monitoring, investigating, resolving and responding to cyber-bullying instances.
Additionally, and to further minimise risk, preventative and educative measures should also be utilised. This may mean undertaking training of staff and educational sessions for students to promote an understanding of bullying in online contexts and how to identify it, report it and appropriately respond.
A relatively recent and important resource in combating cyber-bullying is the Australian Government Children’s e-Safety Commissioner (CeSC). The CeSC is responsible for the protection of children experiencing cyber-bullying and the administration of a complaints scheme in respect of prohibited online content.
The CeSC can issue take down notices to social media platforms seeking removal of the bullying content within 48 hours. It can also refer complaints about cyber-bullying to the school or in serious cases to relevant law enforcement agencies. The CeSC also operates an eSafety Hotline where complaints about online content can be lodged. Where prohibited content is hosted in Australia, the eSafety Hotline can direct the hosting service take down the content. If the content is hosted overseas, the eSafety Hotline can refer the content to an ISP filter provider so as to filter it via optional end-user filter subscriptions.
Most social media platforms have their own cyber-bullying and offensive content policies and often special e-safety hubs where users can register their complaints and report cyber-bullying. The CeSC contains links to a range of these on its website. It is a requirement that the complaint be first made to the social media platform prior to the CeSC.
The CeSC also provides useful resources and links to relevant information about dealing with cyber-bullying and navigating the available tools provided by social media platforms for managing cyber-bullying. It is worthwhile becoming familiar with these tools and incorporating them where relevant into school social media policy implementation.