CONCEPTUALISING CYBER BULLYING, THE SCHOOL AND THE LAW

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CHAPTER 3 SOUTH AFRICAN LAW AND POLICY FRAMEWORK ON CYBER BULLYING

Introduction

In chapter 2 it was established that cyber bullying has harmful consequences for the victims thereof, and affects several human rights. The effective protection of human rights must ultimately come from within the state.333 The IHRL principle of subsidiarity ensures that decisions are taken as closely as possible to the citizen.334 This means that the protection of the rights of learners who are victims of cyber bullying should take place at national (legislation) level and local level (school policy). In line with this principle, cyber bullying is researched in this dissertation as a form of misconduct that should be dealt with at school level.
In order to successfully institute measures to protect learners against cyber bullying, the state’s human rights obligations in terms of the South African Constitution and IHRL should be considered. Secondly, one has to look at the current South African legal framework for the regulation of cyber bullying to determine which measures are in place to protect these rights.
In the first part of the chapter I discuss the South African Constitution and the human rights contained in the Bill of Rights relevant to cyber bullying. Lastly, I discuss existing South African law and policy available for the protection of learners against cyber bullying.
Alston, P. and Goodman, R. International Human Rights Text and Materials the successor to International Human Rights in Context: Law, Politics and Morals. 2013 Oxford University Press at 1047.

 The South African Constitution

The South African Constitution is the supreme law of the country, any law inconsistent with the South African Constitution is invalid.335 The South African Constitution creates a system of co-operative government where government functions are decentralised to ground level. Section 104 of the South African Constitution, read with Schedule 4 determines that education is shared between the national and provincial spheres of government. This means that they have concurrent legislative powers with regard to school education in South Africa. The National as well as the Provincial departments of basic education may enact cyber bullying legislation.
As already mentioned, public schools are organs of state.336 However, this does not mean that the public school forms part of a specific sphere of government, but that the public school renders a public service, education, and is thus part of public administration and subject to the South African Constitution.337 A public school is also a “juristic person”.338 This means that the school is recognised as a legal entity, and has the capacity to perform public functions. The governing body of a school acts as functionary of the school and is responsible for the governance of the school.339 This means that a governing body acts on behalf of the school, and must have the best interests of the school at heart.340 Schools, as organs of state, must comply with the South African Constitution and the obligations placed on them by the South African Constitution.341 All legislation and policy governing education in South Africa must be in line with the South African Constitution.342 The South African Constitution contains a Bill of Rights with fundamental human rights and the South African Constitution has bestowed a sacred trust on South African courts to protect human rights.343 Furthermore, section 7(2) of the South African Constitution contains a mandate that the State must respect, protect, promote, and fulfil the rights in the Bill of Rights.
IHRL also forms part of South African national or domestic law, and informs the interpretation of the rights in the Bill of Rights. In terms of section 39(1) of the “Interpretation clause”:
When interpreting the Bill of Rights, a court, tribunal or forum must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; must consider international law; and may consider foreign law.
This section provides for the interpreters of human rights to include the values of the South African Constitution in interpretation of the Bill of Rights and to consider international law. It further provides that foreign law may be considered. International law will include both binding and non-binding international law.344 Section 233 of the South African Constitution provides that a court interpreting any legislation is to prefer an interpretation which is in accordance with international law over any interpretation which is not in accordance with international law.
Section 231 of the South African Constitution determines the following with regard to international agreements.
The negotiating and signing of all international agreements is the responsibility of the national executive.
An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection (3).
An international agreement of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession, entered into by the national executive, binds the Republic without approval by the National Assembly and the National Council of Provinces, but must be tabled in the Assembly and the Council within a reasonable time.
Any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by parliament is law in the Republic unless it is inconsistent with the South African Constitution or an Act of Parliament.
According to section 232 of the South African Constitution, customary international law is part of the South African law if it is not inconsistent with the South African Constitution.
When international human rights treaties are ratified, governments must put into place measures and legislation to fulfil their obligations. South Africa is bound by international law, which implies that schools as organs of state are also bound by IHRL and are thus mandated to protect and promote human rights in schools.345 Thus, all the human rights discussed in this chapter are informed by IHRL.

 Cyber bullying as a violation of human rights

It is important to note that human rights are not absolute. Some rights contain internal limitations, such as the right to an education in that it states that mother tongue language education should be provided where reasonably possible.346 All rights may justifiably be limited in terms of the general limitation clause contained in section 36 of the South African Constitution. It reads:
The rights in the Bill of Rights may be limited only in terms of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors,
including:
the nature of the right;
the importance of the purpose of the limitation;
the nature and extent of the limitation;
the relation between the limitation and its purpose; and
less restrictive means to achieve the purpose.
Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.
What makes cyber bullying complex to regulate is that a number of different human rights will come into play all at once. For example, the cyber bully has freedom of expression. That freedom of expression may infringe on the rights to privacy and human dignity of the victim. Thus, there will have to be a balancing act between the rights of the bully and the bullied to determine whether the limitation of right of the bully or victim was justifiable. In the following section the different human rights that are affected by cyber bullying are discussed in more detail.

 Children’s rights and the best interests of the child principle

Section 28 of the South African Constitution gives expression to South Africa’s international obligations in terms of the Convention on the Rights of the Child (CRC),347 and protects a range of different children’s rights.348 Specifically relevant to cyber bullying is section 28(1)(d) of the South African Constitution which states that “every child has the right to be protected from maltreatment, abuse or degradation”. When one looks at the definition of and harm that can be caused by cyber bullying, it can be classified as a form of abuse or degradation. Thus, there is a duty on the state to protect learners at school against cyber bullying.
This is in line with the core principal of the CRC that determines that children have a right to be free from all forms of violence. The CRC is based on four core principles regarding children’s rights. These principles are non-discrimination, the best interests of the child, the right to life, survival and development of the child to the maximum extent, and the right of children to be heard in matters concerning them.349
Cyber bullying is recognised as a form of violence. The definition of violence includes “non-physical and/or non-intentional forms of harm (such as, inter alia, neglect and psychological maltreatment)”.350 The term “mental violence” includes “psychological bullying and hazing by adults or other children, including via information and communication technologies (ICTs) such as mobile phones and the Internet (known as “cyber bullying”)”.351 Paragraph 21 obliges state parties to protect children against cyber bullying.
General Comment 13 by the Committee on the rights of the child goes even further in identifying specific risks of violence through information and communications technologies.
Child protection risks in relation to ICT comprise the following overlapping areas:
Sexual abuse of children to produce both visual and audio child abuse images facilitated by the Internet and other ICT;
The process of taking, making, permitting to take, distributing, showing, possessing or advertising indecent photographs or pseudophotographs (“morphing”) and videos of children and those making a mockery of an individual child or categories of children;
Children as users of ICT:
As recipients of information, children may be exposed to actually or potentially harmful advertisements, spam, sponsorship, personal information and content which is aggressive, violent, hateful, biased, racist, pornographic, unwelcome and/or misleading;
As children in contact with others through ICT, children may be bullied, harassed or stalked (child “luring”) and/or coerced, tricked or persuaded into meeting strangers off-line, being “groomed” for involvement in sexual activities and/or providing personal information;
As actors, children may become involved in bullying or harassing others, playing games that negatively influence their psychological development, creating and uploading inappropriate sexual material, providing misleading information or advice, and/or illegal downloading, hacking, gambling, financial scams and/or terrorism.
Child pornography as well as cyber bullying are mentioned in these specific risks. The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography defines child pornography as “any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes”.352 Article 3 of the Optional Protocol obliges state to, at the least, provide for child pornography as a crime under the criminal and penal law of the country.
Section 28(1)(g) of the South African Constitution protects the rights of the cyber bully. In punishing or disciplining a cyber bully at school, it should be kept in mind that the bully must be treated in a manner that takes account of his/her age, must not be detained except as measure of last resort, and then only for the shortest period. Article 17 of the African Charter on the Rights and Welfare of the Child speaks to the rights of children in conflict with the law.353 The aim of justice for these children should be “his or her reformation, reintegration into his or her family and social rehabilitation”. This must be taken into account when dealing with a cyber bully, who is also a child. In fact, dealing with juvenile delinquency and children in conflict with the law was deemed so important by the international community that separate guidelines have been drawn up for children in conflict with the law.
The preamble of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), 1985354 states that:
1.2 Member States shall endeavour to develop conditions that will ensure for the juvenile a meaningful life in the community, which, during that period in life when she or he is most susceptible to deviant behaviour, will foster a process of personal development and education that is as free from crime and delinquency as possible.
1.3 Sufficient attention shall be given to positive measures that involve the full mobilization of all possible resources, including the family, volunteers and other community groups, as well as schools and other community institutions, for the purpose of promoting the well-being of the juvenile, with a view to reducing the need for intervention under the law, and of effectively, fairly and humanely dealing with the juvenile in conflict with the law.
If one applies this to cyber bullying, it will mean that the goal of any law and policy regulating cyber bullying must be to avoid legal intervention and to deal with cyber bullies and cyber bullying victims humanely.
Rule 5 states the aims of juvenile justice. Firstly, the well-being of the juvenile is emphasised and secondly, there must be proportionality between the circumstances and offence of the juvenile.355 This principle is well-known as an instrument for curbing punitive sanctions, mostly expressed in terms of the legal requirement that the punishment (sanction) should fit the gravity of the offence. The response to young offenders should be based on the consideration not only of the gravity of the offence but also of personal circumstances. The individual circumstances of the offender (for example social status, family situation, the harm caused by the offence or other factors affecting personal circumstances) should influence the proportionality of the reaction (for example by having regard to the offender’s endeavour to indemnify the victim or to her or his willingness to turn to a wholesome and useful life).

CHAPTER 1 INTRODUCTION
1.1 Introduction
1.2 Background to the study
1.3 Motivation for the research
1.4 Research problem
1.5 Aim and objectives of the research
1.6 Significance of the study
1.7 Research methodology
1.9 Ethical considerations
1.10 Scope of the study
1.11 Assumptions
1.12 Chapter division
1.13 Conclusion
CHAPTER 2 CONCEPTUALISING CYBER BULLYING, THE SCHOOL AND THE LAW
2.1 Introduction
2.2 The distinct nature of cyber bullying
2.3 Challenges to regulate cyber bullying in schools
2.4 Literature review on management of cyber bullying in schools
2.5 The regulation of school cyber bullying in the United States of America
2.6 Conclusion
CHAPTER 3 SOUTH AFRICAN LAW AND POLICY FRAMEWORK ON CYBER BULLYING
3.1 Introduction
3.2 The South African Constitution
3.3 Cyber bullying as a violation of human rights
3.4 Cyber specific IHRL
3.5 South African legislation and common law
3.6 Conclusion
CHAPTER 4 RESEARCH METHODOLOGY AND DESIGN
4.1 Introduction
4.2 Research paradigm
4.3 Qualitative research approach
4.4 Socio-legal case study design
4.5 Population and sampling
4.6 Data collection methods
4.7 Validity and reliability
4.8 Pilot study
4.9 Data analysis
4.10 Ethical considerations
4.11 Plagiarism
4.12 Conclusion
CHAPTER 5 DATA PRESENTATION, ANALYSIS, INTERPRETATION AND RESEARCH FINDINGS
5.1 Introduction
5.2 Document analysis: code of conduct for learners
5.3 Interview with the school principal
5.4 Interview with the LO educator
5.5 Interview with the school discipline officer
5.6 Summary of findings in the three interviews
5.7 Focus group
5.8 Summary of findings in the focus group
5.9 Learner questionnaire
5.10 Summary of data in the questionnaires
5.11 Triangulation and summary of all the data in the case study
5.12 Summary of important findings in the case study
5.13 Conclusion
CHAPTER 6 FINDINGS, CONCUSION AND RECOMMENDATIONS: A LAW AND POLICY FRAMEWORK TO REGULATE CYBER BULLYING IN SOUTH AFRICAN SCHOOLS
6.1 Introduction
6.2 Summary of findings, conclusions and recommendations
6.3 Assumptions
6.4 A legal framework for the regulation of cyber bullying
6.5 Information brochure on cyber bullying
6.6 Suggested future research
6.7 Conclusion
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