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The Dark Side of the Digital World in a School Context

This article is based on a session led by Stephanie McLuckie and Zoe Brindle, Senior Associates at Carroll & O’Dea Lawyers, at its Charity Law Day in August 2024.  This article has been prepared by Stephanie McLuckie.

In today’s digital age, schools are increasingly facing challenges related to the use of social media and smartphones among students. Recently, schools have had to learn to deal with the use (and misuse) of generative artificial intelligence (AI) technology. While these technologies may offer educational and social benefits, they also come with significant risks that can impact the well-being of students and the reputation of schools.

Issues in Schools Relating to Social Media and Sexting

One of the most pressing issues schools face when dealing with the digital world is the misuse of social media and sexting by students (and, occasionally, employees). Sexting involves sharing sexually explicit or intimate messages online or through texts, often with photos or videos attached. This behaviour is often criminal (when it involves children) and can lead to serious consequences, including image-based abuse (commonly known as “revenge porn”) and sexual extortion or “sextortion,” which is a form of blackmail. Students have also been known to use ‘nudify’ apps and other generative AI technologies to share fake images of other students or of their teachers.

Research from the eSafety Commissioner shows that almost two-thirds of Australian 14-17-year-olds report having viewed extremely harmful content in the past year, and 44% of young people report having a negative online experience in the last six months. This includes 15% who received threats or abuse online. Additionally, explicit deepfakes – computer-generated videos, images and audio in which people appear to be doing things they never did – have increased on the internet by as much as 550% year on year since 2019.

Where Does the Liability of Schools Land?

Schools and teachers have a non-delegable duty of care for the health and well-being of their students. This means that they must take reasonable steps to protect students from foreseeable risks. The risk of harm from cyberbullying and other online misbehaviour is well known (and foreseeable) so schools must take reasonable steps to prevent this sort of harm.  Schools can be liable for a failure of the school’s administration, and also be vicariously liable for the actions of their employees, when they fail to take appropriate action to prevent sexting, threatening behaviour, and bullying of students. While schools are not vicariously liable for the actions of their students, there is a risk that a school operator can be found to be negligent if a foreseeable risk eventuates and the school did not take appropriate steps to address it.

How Can a School Protect Itself and Its Students?

Schools should implement a range of strategies:

1. Education, Training, and Awareness: Conduct regular workshops and seminars to educate students, teachers, and parents about the risks and responsible use of digital technologies (and consequences for misuse). Promote responsible digital behaviour.
2. Robust Frameworks, Policies, and Procedures: Implement comprehensive child protection and behaviour management policies that address cyberbullying and other online behaviour, including standards for student and staff behaviour (particularly while using school devices and digital platforms).
3. Social Media Strategy: Develop a proactive social media strategy to manage the school’s online presence and address any issues that arise. Register trade marks (to prevent unauthorised use) and act promptly when you come across defamatory or abusive material.
4. Technology Solutions: Invest in advanced cybersecurity tools and content filtering systems to protect against cyber threats and inappropriate content.
5. Support Systems: Establish support systems, such as counselling services and reporting mechanisms, to provide students with the help they need.
6. Collaboration: Collaborate with students, parents, law enforcement, the eSafety Commissioner and cybersecurity experts to address digital risks effectively. Engage with stakeholders and lobby for changes to the law if it fails to keep up with advances in technology.
7. Device Management: Consider the pros and cons of banning devices at your school, as has been done in government schools in NSW. Options include requiring phones to be off and away, stored in lockers, or collected at the front office. Balance access to digital technologies with safety.

When an incident does occur at school (or otherwise involves your students), it’s crucial to act quickly and effectively:

1. Prepare: Implement the steps listed above and review child protection and behaviour management policies and procedures (and make sure these are kept up to date), as well as e-safety toolkits and guides.
2. Manage the incident immediately: Disclose the incident to the appropriate person (make sure everyone knows who this is) and act quickly to support students and contact the Police if necessary. Focus on wellbeing.
3. Evidence: Keep written file notes and avoid sharing the material. If you have downloaded material to your device, this should be given to the Police. Don’t delete the evidence.
4. Report: Contact the eSafety Commissioner and report explicit material to social media platforms, unless the Police are investigating. Use online tools to have abusive and other harmful material pulled down.
5. Ongoing Education, Resources, and Support: Follow up with students after the incident, arrange counselling and raise awareness of support services.

By implementing strategies such as these, schools can create a safer digital environment for their students and protect themselves from potential liabilities. The key is to be proactive (not reactive) and stay informed about the latest digital risks and best practices. Make use of freely available resources, such as the toolkits and other materials prepared by the eSafety Commission.