Cyberbullying and the role of the law in Australian schools: Views of senior officials

Abstract

This study examined the opinions of influential, authoritative employees from the education and legal systems, regarding their perceptions of the role of the law and cyberbullying in Australian schools. Participants were asked whether they thought a specific law for cyberbullying should be introduced, what particular behaviours, if any, should be criminalised and who should be involved. Participants were located across three Australian States. Thematic analysis was used to identify eight main themes within the data, namely (1) uses of the law in general, (2) introduction of a law for cyberbullying, (3) benefits and difficulties of criminalising cyberbullying for young people, (4) conditions for a cyberbullying law for young people, (5) who should be involved in a cyberbullying law, (6) legal sanctions thought to be appropriate, (7) educational and legal solutions and (8) educational interventions for student cyberbullying. Implications include increasing the awareness of how existing legislative responses can be used as deterrents, working towards more effective cooperation of education and legal systems.

Introduction

With technological advances and increased access to mobile phones and the Internet young people have become vulnerable to a new form of bullying, referred to as ‘cyberbullying’ (Smith et al., 2008). Cyberbullying affects 10 to 14 per cent of children within Australia (Campbell, Spears, Slee, Kift, & Butler, 2011; Cross et al., 2009) although a recent review has estimated that approximately 20 per cent of young people are involved (Katz et al., 2014). It is defined as a repeated, intentional act of aggression, using an electronic device, towards a group or individual who cannot easily defend themselves (Smith, Mahdavi, Carvalho, & Tippett, 2006). The negative outcomes associated with cyberbullying are thought to be worse, compared to those of traditional bullying, with higher levels of anxiety, depression and social difficulties reported by students who have been cyberbullied (Campbell, Spears, Slee, Butler, & Kift, 2012; Perren, Dooley, Shaw, & Cross, 2010; Spears, Taddeo, Daly, Stretton, & Karklins, 2015). In light of the frequency and serious impact of cyberbullying on those involved there a debate is emerging regarding the role of the law to address the issue.

Cyberbullying and the law

One response to addressing cyberbullying that is being considered is a specific cyberbullying law (Department of Communications Discussion Paper, 2014; Keeley, Katz, Bates, & Wong, 2014). Currently, Australia does not have a specific law devoted to cyberbullying (Butler, Kift, & Campbell, 2010; Campbell et al., 2011; Langos, 2013, 2014). Australian law does, however, recognise criminal offences that can be applied to behaviour regarded as cyberbullying (Butler et al., 2010; Campbell et al., 2011; Langos, 2013, 2014). These include the prohibition against the misuse of telecommunications under Commonwealth law and State/Territory offences such as stalking, indecent filming and criminal defamation (Butler et al., 2010). There are also civil laws that may, in an appropriate case, allow a target of cyberbullying to seek monetary compensation against a perpetrator, such as defamation, breach of confidentiality and infliction of emotional distress (Butler, Kift, Campbell, Slee, & Spears, 2011). However, the application of such laws presupposes that the perpetrator has sufficient financial resources to pay any court award, which may be problematic in the case of an underage perpetrator (Butler et al., 2010).

With the array of the existing laws available, the question may be raised whether there is need for a specific cyberbullying law. Indeed the Enhancing Online Safety Discussion Paper (Department of Communications, 2014) called for public consultation ‘to explore options for dealing with cyberbullying under Commonwealth legislation’, noting that while there might be ‘existing laws in Australia that could cover such conduct, many people, especially minors, may not be aware that the existing laws may apply’ (p. 20). When the Commonwealth Government finally addressed the issue it considered four policy options:

the status quo (i.e. do nothing);

implement education and awareness raising measures to better explain the application of existing offences;

create a separate cyberbullying criminal offence covering conduct where the victim is a minor, with a lesser maximum penalty; and

create a separate cyberbullying notice regime to deal with cyberbullying behaviour.

By enacting the Enhancing Online Safety Act 2015 the Government chose to pursue options 2 and 4. This statute establishes the Children’s e-Safety Commissioner and provides for a complaints system for cyberbullying material targeted at Australian children. This includes a two-tiered system for removal of cyberbullying material from large social media services. This system specifies that Tier 1 social media sites, which includes Twitter and Flickr, will continue to handle complaints of harassing materials posted on their services according to their own complaints procedures. Where the Commissioner receives a complaint that a Tier 1 service has failed to remove material within 48 hours following a complaint made under the service’s complaints scheme, the Commissioner may request the service to remove the material within a further 48 hours. The service is not, however, obliged to comply with this request. If, however, a Tier 1 service repeatedly fails to comply with requests to remove material over a 12-month period or if the Commissioner is satisfied that the service does not comply with basic online safety requirements set by the Commission, the Commissioner may revoke the services Tier 1 status. By contrast, Tier 2 services, such as, Facebook and Instagram are subject to direct regulation (Office of the Children’s E-safety Commissioner, 2015).Where the Commissioner receives a complaint of cyberbullying material on such a service he/she may give a binding direction to have the cyberbullying material removed within 48 hours, failing which the service may be subject to a civil penalty.

The Act also includes a mechanism for the Commissioner to give end-user notices to require a person who posts cyberbullying material to remove the material, refrain from posting further material or apologise to the child for posting material. Complaints to the Commissioner may be made by the child or on behalf of the child by a parent or guardian. The Commissioner has a wide discretion to investigate complaints as he/she sees fit. The Commissioner is empowered under the statute to disclose information to parents, teachers or school principals in order to assist in resolution of complaints.

The statute expressly states it operates alongside and does not exclude the operation of any other Commonwealth or State/Territory law. It therefore has no effect on existing laws that have relevance to cyberbullying and leaves open the question of the desirability of enacting a specific cyberbullying law (whether criminal or civil).

There are both advantages and difficulties associated with introducing a specific cyberbullying law. Such a law could be used as a specific deterrent, to punish perpetrators, to set a norm or standard within society, to provide compensation to targets and/or to provide an additional imperative for schools to create effective anti-bullying policies (Campbell & Zavrsnik, 2013; Campbell et al., 2011). Additionally, a cyberbullying law may lead to increased awareness and understanding about the behaviour and greater clarity around the types of behaviours considered illegal (Langos, 2013). Further, while cyberbullying currently in many circumstances might constitute a misuse of telecommunications under Commonwealth laws, it is more likely to be State/Territory police who respond to cyberbullying complaints. Specific State/Territory laws prohibiting cyberbullying may help avoid this potential jurisdictional dilemma.

However, a threshold concern that should not be lightly dismissed is whether creating a specific cyberbullying law of broad application would risk criminalising a large number of young people not currently caught by existing criminal laws. Under Australian laws children aged 14 or over are deemed to have the requisite capacity to be criminally liable, while children between the ages of 10 and 14 may be criminally responsible if the prosecution can prove beyond reasonable doubt that the child knew he or she ought not to have committed the offence, as distinct from an act of mere ‘naughtiness or childish mischief’ (Butler et al., 2010). By contrast, Keeley et al. (2014) found that at present in Australia, police only take formal action under youth offender legislation ‘in the more serious cases’(p. 2), and generally employ diversionary approaches such as warnings, or juvenile justice conferences, with very few cases resulting in them commencing criminal proceedings using existing laws.

Next it would be necessary to determine the exact behaviours that ought to be prohibited. A legal definition of ‘cyberbullying’ need not necessarily correlate with a definition with which researchers may be accustomed. For example, there have been court decisions applying existing laws to behaviour regarded as bullying which occurred in a single incident (Butler et al., 2010). The same question would arise in relation to a specific law against cyberbullying.

Deciding upon appropriate sanctions for cyberbullying behaviours requires careful consideration. The outcome of the behaviour would need to be considered (Campbell et al., 2011). However, this can be difficult since the outcomes are not always immediately apparent and may emerge days, weeks or months later. To further complicate matters a significant impact can be the result of a minor indiscretion. In addition, connecting a specific incident of cyberbullying with one particular outcome may also be difficult since the manifestation of the impact of cyberbullying, ‘such as mood swings, depression, anxiety and poor academic results might in a given case be experienced by an adolescent as a result of a variety of causes, including simply those associated with growing up or as the result of unrelated upheaval in the family situation, like parents divorcing’ (Butler et al., 2010). Other factors, such as the perpetrator’s age, would also need to be considered, when determining an appropriate sanction. During the 2013 national Bullying, Young People and the Law Symposium an argument was made for penalties not to include imprisonment for children (Alannah and Madeline Foundation, 2013).

In sum, considerable debate concerning the role of the law and cyberbullying in Australia continues, with the emergence of fledgling national policies, discussion papers and most recently, the establishment of an e-Safety Commissioner, whose role involves a complaints referral process, and powers to require large social media companies to remove offensive material.

Present study

What is missing from this debate however, are the specific views and perspectives of key education stakeholders who are influential in creating education policy and practices relevant to, for example, behaviour management policies and duty of care. Thus the aim of this study was to discover the ideas and opinions of key officials, from within the educational bureaucracies and legal systems, regarding the current criminal and civil laws and what role the law should play. In addition, we were interested to see whether they believed that a specific cyberbullying law should be introduced. Their thoughts, ideas and opinions relating to cyberbullying and the law were important to consider since they represent senior authoritative voices from significant stakeholder / policymaker groups who are invested in reducing and preventing cyberbullying and who can potentially influence the way that cyberbullying can be managed in schools and communities. It further aimed to investigate what behaviours the respondents thought should be targeted and who they believed should be involved in this process.

Method

Participants

Eleven senior officials/stakeholders were interviewed. Each was purposefully recruited given their roles in senior policy development and their influence on policy at the state authority level. A maximum variation sampling approach (Patton, 1990) was adopted, whereby each participant selected brought variation (location, system, role), thereby ensuring that a diverse range of views was available. Ten represented the government education system bureaucracy and had experience in both education and the law, and one represented the police crime division. Three were located in Queensland (from the government education system), four in South Australia (three from the government education system and one from the police/crime division) and four in Western Australia (all from the government education system). The education department participants had backgrounds in education and law. All participants were given an ID code to enable anonymous participation.

Procedure

Fifteen participants were contacted by the research team in writing requesting their participation in the research, five from each state. Email and telephone calls were used to follow up this recruitment strategy. Consenting participants completed semi-structured phone (n = 1) and face-to-face interviews (n = 11), which ranged in length from 20 to 80 minutes. Interviews were conducted between November 2012 and June 2013. Participants were asked questions to ascertain their views on cyberbullying and its relationship with/to the law (see Appendix 1). For example, participants were asked: within which system – the education or legal system – do you think cyberbullying incidents should be addressed? Should there be a distinct law against student cyberbullying?

Participants’ responses were audio recorded and transcribed verbatim. Participants were emailed a copy of their interview transcript to review their responses and make amendments where necessary. Two participants edited their responses, and this additional information was included in the data analysis.

Data analysis

Thematic analysis was used to analyse the data and to identify the substantive themes in relation to cyberbullying and the law. The qualitative approach employed allowed for an in-depth description and understanding of key sector stakeholders’ opinions regarding the possible introduction of laws for cyberbullying. The procedure used followed Braun and Clarke’s six phases (2006).

In phase one, the data were transcribed and re-read with initial notes about the data recorded. During the second phase, initial codes were created for the data and information relevant to each of these codes was collated. For phase three, the codes were collated into potential themes. If, however, a code failed to fit well into a potential theme it was added to a theme titled “Miscellaneous”. In the fourth phase, each of the coded extracts were examined with a view to make themes coherent and to ensure the overall themes accurately reflected the information conveyed by the participants. The fifth phase saw the themes refined further and a short description of each of the themes developed. The name of each theme was also carefully considered. The sixth and final phase consisted of further refinement of the themes and the selection of extracts to use within the report.

Once the coding process was completed by the researchers, the entire data set was coded by an independent researcher not involved in the project. When coders differed in the categorisation, decisions were examined and discussed until unanimous consensus was reached (Miles & Huberman, 1994). Eight key themes emerged from the data.

Results

Analysis of the interview transcripts resulted in eight key themes: Uses of a cyberbullying law; Introduction of a law for cyberbullying; Benefits and Difficulties of Criminalising Cyberbullying for Young People; Conditions for a Cyberbullying Law for Young People; Who should be Involved in a Cyberbullying Law?; Legal Sanctions Thought to be Appropriate; Benefits and Difficulties of Criminalising Cyberbullying for Young People; Educational Interventions for Student Cyberbullying. Quotations from participants are included as exemplars of their views.

Uses of a cyberbullying law

Four circumstances were identified where a cyberbullying law, appropriate for school-age students, might be useful: using a cyberbullying law for extreme behaviours; using it to guide policy making; using it for support and advice; and using it to enable targets to report incidents and take legal action.

Many participants suggested having a law for cyberbullying would be useful for extreme cases of cyberbullying or as a last resort:

If the principal won't do anything then a teacher or Senior Support Officer should report it to the regional office and if it’s threatening in any way or defamatory in any way they should report it to the police. (B01)

It is the long drawn out cases that can’t be resolved that must be dealt with by the law. (C01)

Some participants felt having a law concerning cyberbullying would assist in developing and guiding anti-bullying policies within school systems:

We certainly use legal advice here when we’re developing the templates for the schools. (A02)

Most participants also reported having a cyberbullying law would allow them to gain legal support and advice for incidents of cyberbullying:

I suppose most of our schools if they have a concern would use legal advice, they would seek their own legal advice… (A02)

Participants identified having a law for cyberbullying would allow them to report cyberbullying incidents and take legal action, if required:

For the members so we will always say to the member, make a report to the police, for cyberbullying. (B01)

…we’ve sort of said to parents, look if your child is being cyberstalked, cyberbullied in an unhealthy way, you can go to the authorities, you can go to the police, you can go to Facebook, you can do these things and essentially that’s it. (C02)

These findings suggest the stakeholders felt a cyberbullying law could be useful in a number of situations, particularly in extreme circumstances or as a last resort when the issue is not able to be resolved at a local level.

Introduction of a law for cyberbullying

Participants were divided in their support of a specific criminal law against cyberbullying. The majority of participants thought a specific law was not warranted for cyberbullying:

If specific legislation does not exist in (state), then in this moment in time, there is no evidence that (that) we need specific legislation… (A03)

In fact the remedies legally are not great, particularly for children. (C02)

Others suggested the introduction of a cyberbullying law may be beneficial for a number of reasons:

Definitely, I mean if you cyberbullied someone which caused their mental health issue or worse, suicide. I mean to me that’s manslaughter … why aren't those people charged with manslaughter? (B01)

… the big stick approach works. (A01)

Because we’ve always pushed the education, the preventative side first, rather than the sledgehammer approach. It just hasn’t worked in the past and it’s not going to work in the future. (C03)

These comments illustrate the differing opinions on whether there needs to be a specific law against cyberbullying.

Benefits and difficulties of criminalising cyberbullying for young people

Participants spoke about various difficulties associated with introducing a cyberbullying law for young people. Initially, participants identified that cyberbullying was challenging to define:

I think that it’s problematic to define any sort of bullying as illegal, so there are degrees of bullying type behaviours, some of which might be regarded as illegal and others of which might not be. (C04)

Participants suggested there needed to be a clear and understandable definition to assist people with correctly identifying illegal cyberbullying behaviours. They also noted that cyberbullying is difficult to define legally.

Others identified the long-term consequences of criminalising cyberbullying to be problematic; suggesting that holding someone under the age of 18 criminally responsible could result in negative outcomes:

I’d be hesitant to have cyberbullying for a person who is under 18, for it to be a criminal offence because the long term consequences are too…unless they really engaged in behaviour that is now deemed to be criminal. (C03)

Participants also reported that proving someone was involved in cyberbullying could be challenging. It was noted the consequences of being cyberbullied were often not immediate and the long-term repercussions or significance for the target were difficult to identify. The resulting decision on an individual’s punishment for cyberbullying could prove problematic:

… constant harassment through cyberbullying it’s very hard to quantify that and it’s very hard generally to quantify that anyway but in criminal law … (C02)

If you don’t have the evidence of something having occurred, it’s quite easy for somebody to say “well that never happened.” (B04)

Other participants thought that sometimes there is very little the police can do, despite laws being in place. One participant indicated there are many laws which are associated with fines that are very rarely used, even though they would be beneficial in certain circumstances:

Sometimes laws have no teeth… (B02)

If things prove to be toothless, and kids being kids will know that they can get around it. (B04)

Participants also identified that currently there is little clarity around state and federal laws and having better transparency would be helpful:

… there’s not a lot of clarity around online legislation or online bullying… (C03)

I think it’s a very grey area isn’t it? (C04)

Others suggested the law is often black and white and fails to consider the circumstances surrounding the individual case:

The law is very black and white and it doesn't take into consideration the extenuating circumstances which might surround a particular student’s situation case or whatever. (A01)

Some participants identified the difficulty of criminalising a social behaviour. Participants suggested cyberbullying should be treated as a behavioural problem rather than as a crime:

… my concern is that, criminalising what is essentially at this stage social behaviour, I'm not sure that that sends the right message. (B03)

Cyberbullying isn’t a crime … it’s a behavioural issue. (B04)

Other participants identified that merely introducing a law does not fix the problem, particularly in terms of modifying a perpetrator’s behaviour in the future:

You can tell them it’s an offense till the cows come home, but you have then got to give them the tools to deal with it … (A03)

… once you’ve proved someone has done the bullying it is pretty easy to say well here is the punishment; but you have to modify behaviour or it will happen again. (C01)

A small number of participants noted the enforcement of laws can be difficult; particularly when it is necessary to have organisations comply with regulations and to provide information pertaining to certain cases:

… they require the Internet providers to …, you know comply with various things which is hard to do. (C02)

… it becomes more difficult to then enforce and for people to comply … (A02)

One participant also indicated that many people have poor Internet knowledge, which makes introducing a law difficult for an activity that generally occurs online. Another participant suggested a law would be time consuming, particularly for teachers:

… because it’s electronic crime we’re talking about an arena that people don't necessarily have a great understanding of. (B04)

… so there’d be a significant amount of IT illiteracy there. (B04)

I just think it adds to the knowledge that teachers have to add, to what they do as a teacher. So it takes more time, all those things. (A02)

Participants also commented on the benefits of having a specific law for cyberbullying. Firstly, identifying that a law would raise awareness with regard to acceptable online behaviour:

But what that law has done is raise awareness among parents, about why we damn well shouldn't do this. (B02)

It’s a societal statement of belief and concern about a particular thing. I think that, laws in the first instance are very much about the community saying this is not something we're going to put up with. (B03)

In addition participants reported a law could help move the process of managing cyberbullying incidents along and provide support to schools trying to manage a situation of cyberbullying:

… it forces the department to meet with us within 48 hours and try and resolve the matter. (B01)

I think the legal aspect gives schools, or gives the department great grunt in how to deal with bullying. (C01)

Finally, one participant reasoned that having a law for cyberbullying may act as a deterrent:

… if every student, every parent got an expiation notice every time they did that, I mean they might sort of rethink when they wanted to say something in an inappropriate way on and in the appropriate forum … (B01)

Overall, these findings suggest that the stakeholders had multiple concerns with respect to the difficulties associated with introducing a law for cyberbullying, with these concerns overshadowing the benefits.

Conditions for a cyberbullying law for young people

Participants determined that for a cyberbullying law to be effectively introduced a number of conditions would need to be met, initially, suggesting that any new law would need to be consistently applied:

That there’s a consistent approach and how they handle it because at the moment it's a dog's breakfast. (B01)

Other participants suggested the importance of clarity around the legislation. For example, a clear understanding about what behaviours would be considered criminal and what the punishments may be:

So being clear I guess around what constitutes a crime, knowing that the legal advice and support is there is a really critical aspect… (B03)

Participants also reported it would be essential for the law to be sufficiently flexible to enable it to be used based on their own discernment while considering the individual circumstances surrounding each situation:

The law needs to take into account what has happened, witness statements, impact statements and other bits and pieces. (C01)

These findings identify some key requirements that would need to be considered for a law to be introduced effectively.

Who should be involved in a cyberbullying law?

Participants spoke about who they thought a student cyberbullying law should involve. Some participants suggested the law should address consequences for perpetrators of cyberbullying as well as supporting the students who were bullied:

… it would need to focus on both. (B02)

I hope it’s the victim offender stuff and forcing perpetrators to look at their victims and see how much hurt it causes. (C02)

Other participants felt it is the target who should be supported by the law:

… there needs to be something for the victim. (C01)

Provide judicial recourse for the targets of the cyberbullying. (B02)

Another participant identified the importance of including the bystanders:

I also think that the bystander is important because if they can be proactive and they do something about a situation then they might actually circumvent it. (A01)

Interestingly, one participant highlighted that often the perpetrator can also be the target:

Often the perpetrator is a victim of it as well and there has to be an awareness of that and the victim also needs assistance… (A01)

These findings suggest that, while some of the stakeholders felt a cyberbullying law should target the perpetrator, many also thought the targets or bystanders should be included within the legislation.

Legal sanctions thought to be appropriate

Participants discussed which possible sanctions could be utilised if those who cyberbully others were dealt with within the legal system.

I'd like to see for example, victim impact statements, I’d like to see mediation. (B02)

It’s possible to involve them in family conferences. (B04)

Alternately, you’ve then got the court process through the juvenile justice system where people can be placed on bonds and required to do certain things as well. (B04)

None of the participants regarded the appropriate legal response to cyberbullying to include sanctions such as imprisonment or fines, but instead suggested a more remedial approach such as good behaviour bonds, mediation and conferences involving the perpetrators, targets and family members.

Benefits and difficulties of criminalising cyberbullying for young people

Participants suggested the prevention and management of cyberbullying could be dealt with within different systems. Many participants stated cyberbullying should be managed within the education system:

Yeah, I think the first point should be within education system and that schools should be skilled up to know exactly how to go about dealing with incidents and preventing incidents first up. (C04)

Another group of participants thought cyberbullying is an issue that should be managed within the legal system:

I believe there’s a police officer that’s attached basically to every school, so there should be some sort of ongoing, positive interaction with the school community. (B04)

Another opinion was that cyberbullying should be addressed within both the legal and education systems:

I think the whole notion once something is identified as a type of bullying then there needs to be some scope for it to be addressed in the legal system but ideally it is dealt with and resolved at a local level. (C01)

Once again, the findings suggest stakeholders disagreed in their judgement of which system should address cyberbullying incidents. However, a majority of participants believed that both systems, the education and legal, should be jointly managing the problem.

Educational interventions for student cyberbullying

Participants highlighted the importance of education when managing cyberbullying incidents, with regard to acceptable behaviour and how to remain safe online for both students and staff within a school:

I think for kids it’s really down to education and to giving them, you know, tools to deal with it once they get involved in something like this. (A03)

One participant also identified that education for children initially comes from within the home and then continues within the school environment:

… I think the best defence about all of this is in an educational role for students, starting from their parents at home and certainly into the schools in their early years. (C02)

Participants also spoke about the importance of educating staff:

… the first responders in a lot of these cases will actually be the teachers. Therefore we need to teach them about preserving evidence, then we also need to understand and do something about the fact that we’ve got to prevent or reduce the behaviour continuing. (B04)

One participant also highlighted the importance of including the wider community, and that schools should not be solely responsible for the provision of cyberbullying education:

It’s an issue that has to be dealt with in the wider community; it’s about educating them. It’s not just about saying well schools are going to solve it all. And I don’t think schools by themselves can. (C01)

These results suggest the stakeholders felt education has the key role in the prevention and management of cyberbullying. They proposed that students should be provided with education about staying safe online and what actions can be taken should they experience cyberbullying. In addition, teachers and the wider community should be cognisant of how to respond to incidents and preserve evidence. It was also suggested that education should not come exclusively from within the school environment, but could be introduced by parents, within the home.

Discussion

Overall, participants were divided in their support for the introduction of a specific cyberbullying law. This division mirrors the debate seen within the wider community and the scholarly world (see Katz et al., 2014). For those participants who were in support of a cyberbullying law, a number of principal uses for a law were identified. The first related to having a cyberbullying law for extreme circumstances, such as when the cyberbullying behaviour is threatening, dangerous, or when it cannot be resolved at a local level. However, it is possible that in these circumstances there would already be laws, non-specific to cyberbullying that could be used. These include misuse of telecommunications and stalking (Butler et al., 2010; Langos, 2013). Indeed, in Victoria the definition of stalking has been recently expanded to embrace behaviour that may be considered cyberbullying, in response to the suicide of a young woman called Brodie Panlock following relentless bullying in her workplace. Given the participant stakeholders suggested a law to use only in extreme circumstances possibly demonstrates there is insufficient awareness regarding what laws are already available to use for some cyberbullying behaviour. It may also suggest that the laws currently available are considered unsatisfactory in terms of their ability to be used in these circumstances or that other methods such as educational means should be used. The participants also suggested a cyberbullying law might be useful in guiding schools to develop effective anti-bullying policies. This supports a similar suggestion made by Campbell and Zavrnik (2013) and used as an effective strategy in other countries, such as the United Kingdom (Samara & Smith, 2008). In addition, participants suggested a cyberbullying law could allow people to access advice and support, relating to the management of cyberbullying incidents.

Throughout the interview participants were asked to consider the details of a cyberbullying law, if it was introduced. They highlighted the importance of the criminal law being clear in relation to what behaviours would be considered illegal, consistent in its response to reports of cyberbullying and sufficiently flexible to enable individual circumstances to be considered. This is similar to results found by Keeley et al. (2014). The majority of participants also recognised it was important for a law to be targeted towards the perpetrator, with the use of sanctions, while also providing support, for example judicial recourse, to the targets. They therefore acknowledged a role for not only criminal but also civil laws.

Participants identified the consequences they thought were appropriate for children and adolescents who cyberbully. These included: mediation, target impact statements, family conferences, bonds and cautions. The juvenile justice team approach was also suggested as a possible way to manage offenders. This is an alternative method used to manage young people who have committed offences or may be becoming involved with particular crimes where young offenders are managed in the community and in juvenile justice centres instead of imprisonment (New South Wales Government, 2015). The suggestions made by the participants were appropriate for children and adolescents and accord with the recommendations made at the national Bullying, Young People and the Law Symposium in 2013, where it was suggested penalties should not include imprisonment for children.

While most participants represented the education sector, they disagreed about which system – the education or the legal system – should be primarily responsible for managing cyberbullying. However, the majority agreed that cyberbullying is an issue that should be managed within both systems. This response is consistent with Bronfenbrenner’s (1979) ecological systems theory, as it would impact multiple aspects of a child’s context. Additionally, in demonstrating their awareness of the need for duty of care, participants acknowledged the importance of not only providing cyber safety education to children and adolescents but to their teachers, parents and to the wider community as well.

The stakeholders identified a number of benefits and difficulties associated with criminalising cyberbullying. Consistent with Langos (2013) the participants noted that a cyberbullying law may lead to greater community awareness and social norms with regard to acceptable online behaviour. Participants also suggested a law may reduce cyberbullying, by acting as a deterrent and may provide schools with a process for managing cyberbullying incidents.

As identified by Marczak and Coyne (2010), participants recognised the challenges associated with geographical/jurisdictional boundaries, particularly policing different state and federal laws. Consistent with the literature, participants identified there may also be challenges associated with holding children criminally accountable for their behaviour (Butler et al., 2010; Campbell et al., 2011; Langos, 2013). A further challenge, similar to suggestions made by Campbell et al. (2010), related to proving that someone was involved in cyberbullying and subsequently enforcing the relevant law. Additionally, participants noted that, at times, the law has a tendency to be black and white. It was suggested it may be more beneficial for circumstances surrounding the cyberbullying incident to be considered. Participants also identified that cyberbullying is difficult to define (Campbell et al., 2011; Langos, 2012) and thought that a clear and understandable definition would be necessary if people were to be able to determine what behaviours would be classified as illegal.

Lastly, participants also recognised the wisdom associated with criminalising what some consider a “social behaviour”. Similar to Campbell et al. (2010) and Campbell and Zavrsnik (2013), participants also questioned the effectiveness of laws modifying perpetrators’ behaviour and deterring individuals from participating in the illegal behaviour.

Strengths and limitations

A strength of this study lies in bringing the voice of key stakeholders to inform thinking about cyberbullying, the law, policy and its management in schools and the community. Since participants represented a small sample of key stakeholders, and were located across three states, it is not possible to generalise the findings nationally or internationally. Their views importantly however, triangulate with other qualitative studies exploring the ways cyberbullying is managed and dealt with in Australia (Katz et al., 2014; Spears et al., 2014), thereby contributing to a broader evidence base of key stakeholders’ views about the role of the law in cyberbullying incidents.

It is important to note, however, that these interviews predated the announcement of the newly appointed e-Safety Commissioner by the Commonwealth Government (March, 2015) and the decision to not introduce new criminal law provisions into the Commonwealth Criminal Code. It will be important, therefore, to continue to monitor key stakeholders’ views as these initiatives roll out.

As an exploratory study these findings provide the foundation and scope for understanding of key stakeholders’ views, especially those who can influence and are responsible for policy and managing incidents in schools. In addition the views of young people need to be sought about the viability and potential effectiveness of such laws.

Implications

The findings from this study suggest that a complex network of factors that are associated with understanding the interplay between cyberbullying and the law, which is consistent with the studies undertaken by the Department of Communications (see Katz et al., 2014). For example, as Smith (2014) notes, there is no universally agreed definition although there may be some “consensus” as to its meaning at least in the western research tradition. Definitions used by researchers do not necessarily equate to definitions that are used or are useful for legal purposes. Calls by some for a dedicated anti-cyberbullying law may be a natural sentiment for those who are at the frontline of grappling for answers for what may seem an interminable phenomenon of the modern age. But it speaks to a lack of awareness of how existing legislative, including civil responses can be used as deterrents. Instead, investigating how educational and legal systems can effectively work together, to tackle the problem may be more beneficial. Finally, participants highlighted the importance of supporting adults to increase their “digital wisdom”. By providing adults with the knowledge and skills required to navigate the digital world in which we now live, they would be in a stronger position to support young people.