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South African Journal of Education

On-line version ISSN 2076-3433
Print version ISSN 0256-0100

S. Afr. j. educ. vol.35 n.2 Pretoria May. 2015 

Cyberbullying in South African and American schools: A legal comparative study



DM Smit

Department of Mercantile Law and the Centre for Labour Law, Faculty of Law, University of the Free State




Bullying conjures up visions of the traditional schoolyard bully and the subordinate victim. However, bullying is no longer limited to in-person encounter, having come to include cyberbullying, which takes place indirectly over electronic media. In this electronic age, cyber platforms proliferate at an astonishing rate, all attracting the youth in large number, and posing the risk that they may become subject to cyberbullying. Far from being limited to those individual learners being cyberbullied, the effects of this phenomenon extend to the learner collective, the school climate, and also the entire school system, management and education, thus requiring an urgent response. This article first provides a general overview of cyberbullying and its impact on learners, schools and education. This is done through a comparative lens, studying the extent of the phenomenon in both the United States and South Africa. The focus then shifts to the existing legislative frameworks within which the phenomenon is tackled in these respective jurisdictions, particularly the tricky balancing act required between learners' constitutional right to free speech and expression, and the protection of vulnerable learners' right to equality, dignity and privacy. The article concludes by proposing certain possible solutions to the problem.

Keywords: cyberbullying; electronic media; harassment; learners; potential solutions; right to dignity and respect; right to free speech; schools; South Africa; United States



Introduction and Background

One of the most important social spheres in which children operate is the school environment. The significant influence that educational institutions have on children's psycho-educational development cannot be over-stressed (Burton & Mutongwizo, 2009); the educational institution should therefore not only be a place of learning for the child, but a place of safety, too. Violence in schools is no new phenomenon and presents cause for great concern worldwide - especially in South Africa, where this has claimed the lives of both learners and educators (Burton & Mutongwizo, 2009). Bullying has been shown to have a negative effect on both educators and learners (De Wet, 2011), while the added dimension of anonymity (Hughes & Louw, 2013) typically associated with cyberbullying, leads to increased antisocial behaviour (Hughes & Louw, 2013), which merely serves to "exacerbate" the bullying problem in South African schools (confer (cf.) Mienie, 2013:146).

Bullying in South African schools has recently received media attention, and several media reports on this topic have consequently appeared (Rooi Rose, 2011). Studies on violence in the workplace and on bullying in South Africa are limited (De Wet, 2011:66). Bullying in general leads to feelings of "incompetence, alienation and depression" (Le Roux, Rycroft & Orleyn, 2010:51); in schools, it has been shown that cyberbullying may result in "low self-esteem, family problems, academic problems, school violence, delinquent behaviour and suicidal thoughts" (Goodno, 2011:645). In the United States of America, several teenagers have committed suicide due to cyberbullying (Goodno, 2011:645-647) and "school taunting" (Burnham, Wright & Houser, 2011:7), which led the legislature in various states to seek a uniform definition of cyberbullying, to investigate the prevalence and frequency of cyberbullying in schools. Prevalence rates differ due to numerous factors, such as "sample characteristics, the definitions used", and whether traditional bullying is also measured, according to Kowalski, Giumetti, Schroeder and Lattanner (2014:1108). This is no minor problem: the attempt to demonstrate power and authority over subjects through "anonymous" cyberspace is experienced by as many as "93%" of youth accessing the internet in North America (Law, Shapka, Domene & Gagne, 2012:665). In February 2012, it was even reported that a woman who had been bullied at a young age about her red hair, suffered that same abuse as a 35-year-old, after a childhood picture of her had been posted on Facebook. The online attack became so blistering that she was forced to call the police, saying that at least at school, she was able to see the bullies, but now, the bullies were faceless, hiding behind their keyboards (Faulkner, 2012).

To set the scene for studying the phenomenon, this article first presents a general overview of cyberbully-ing and its characteristics, as well as its effect on learners, schools and education. The focus then shifts to the legal position in respect of cyberbullying in both the United States and South Africa, after which the paper will investigate the way in which cyberbullying could be halted in order to give effect to our constitutional imperatives, and to balance the rights of the various parties in a school environment.


Cyberbullying occurs when adolescents use technology deliberately and repeatedly to "bully, harass, hassle and threaten" their peers (Goodno, 2011:641), leaving their victims without any escape, as continuous technological development and increased connectedness are shrinking the world. Victims are therefore traced wherever technology is accessed - not only on the "internet, e-mail or smartphones", but through "cellphones, tablets" and any other way of "sending or retrieving" data or voice messages (Li, 2005:1779). Goodno has argued that battling cyberbullying is one of the most pertinent "challenges facing public schools" in the United States of America (hereinafter 'the USA') (2011:655).

Bullying is primarily defined as encompassing physical acts, such as hitting, kicking or pushing; verbal aggression, such as name-calling and abusive language; or relational aggression, such as spreading rumours or socially excluding peers. Cyberbullying merely takes this phenomenon to the next level. All instances are characterised by a "power imbalance", a clear "intent to inflict harm", and the repeated occurrence of harmful acts (Varjas, Henrich & Meyers, 2009:160). Victims of cyberbullying seem to be at a greater risk of experiencing poor psychosocial adjustment, as many internet users are socially isolated, and incite participation from peers in a cyberworld. Therefore, appropriate preventative and intervention strategies should be developed to ensure the "safety of all students" (Li, 2005:1780).

According to Bauman (2013:249), "[c]yberbullying is possible because of the wide availability of digital technology", and the proliferation of technological innovations will therefore always mean that research and, by implication, legislation, will lag behind. This is not to say that a magnitude of research on cyberbullying, especially in foreign jurisdictions, had not been done in recent years, but that the "very nature" of electronic communication leads to different results (Kowalski et al., 2014: 1074). What does stand firm, however, is that South African society needs to take a firm stand to protect our learners from the negative effects of cyberbullying, such as "depression, pathological technology use, obsessive and addictive technology behaviours" and cyberbullying, specifically (and should South Africa investigate the position in other countries, such as the USA (Kowalski et al., 2014:1074)).

Defining cyberbullying

There is no single definition for cyberbullying: in South Africa, Belsey defined cyberbullying as "bullying which involves the use of information and communication technologies, such as e-mail, cellphone and text messages, instant messaging, and defamatory online personal polling websites, to support deliberate, repeated and hostile behaviour by an individual or group that is intended to harm others" (in Burton & Mutongwizo, 2009:1). Williams (in Burton & Mutongwizo, 2009:1) have further defined it as "the use of speech that is defamatory, constituting bullying, harassment or discrimination, and the disclosure of personal information that contains offensive, vulgar or derogatory comments", while Varjas et al. (2009:160) describes it as follows: "the newer technolog[ical] phenomenon of cyberbullying has been defined as willful and repeated harm inflicted through the medium of electronic communication tools".i Kowalski et al. (2014) states that cyberbullying is not easily defined, but that, in general, it refers to the use of electronic communication technologies to bully others. It has been found that prevalence rates differ due to this problem, where the "definition used" by researchers will invariably lead to different results (Kowalski et al., 2014:1074).

Here we thus define cyberbullying as constituting rapid, repeated, intentional actions of harassment or aggression, which are specifically prohibited by the enactment of our Constitution.

Characteristics of cyberbullying

Although cyberbullying shares certain characteristics with 'traditional' bullying, with Bauman (2013:251), for instance, referring to an "overlap" between the two, there are also some major differences, with the key ones being "anonymity" (cy-berbullies are often not known to their victims), "disinhibition" (Bauman, 2010:808) (the perpetrators of online bullying are often less inhibited since they are able to avoid face-to-face contact), accessibility (cyberbullying and its effects follow the victims wherever they go), and punitive fear (the additional disincentive to report cyber-violence due to victims' fear of losing control over their electronic media) (Anti-Defamation League, 2009).

Hinduja and Patchin have stated that "cyber-bullying is a growing problem because increasing numbers of kids are using and have completely embraced online interactivity" (2014:3). Judging by the medium through which cyber bullying is perpetrated, one would be tempted to argue that a child can avoid being cyberbullied simply by not logging on electronically. However, this does not hold water: the publishing of defamatory personal material on the internet is extremely difficult to prevent, and, once posted, millions can download it before it is removed, at which time it becomes irrelevant whether the victim was logged on or not. Rather, the specific nature of cyber-bullying poses problems related to the basic rights of learners and educators guaranteed by the Constitution (Republic of South Africa, 1996a). In a contemporary school setting, the right to equality (Republic of South Africa, 1996a, s. 9); the right to human dignity (Republic of South Africa, 1996a, s. 10); the right to freedom and security (Republic of South Africa, 1996a, s. 12c) ("to be free from all forms of violence from either public or private sources"); the right to privacy (Republic of South Africa, 1996a, s. 24a); the right to a safe environment (Republic of South Africa, 1996a, s. 14); and the right to freedom of expression (Republic of South Africa, 1996a, s. 16), should all be balanced.

Prevalence of cyberbullying

Although definitions used by researchers depictcertain commonalities, prevalence figures are dependent on whether cyberbullying is defined in terms of "specificity versus generality." (Kowalski et al., 2014:1074 - for more detail on prevalence rates in different countries and the different definitions, please see tables on pp. 1075-1106 in this article). Although Bauman (2013:251) refers to "mixed research findings" pertaining to age and gender in terms of prevalence, a study done in 2009 (Varjas et al., 2009:162) revealed that 50% of the respondents reported having been a victim of cy-berbullying, while 22% of them had personally perpetrated cyberbullying. Another study, also undertaken in 2009, indicated that 35% of children between the ages of 13 and 17 were the targets of cyberharassment (Goodno, 2011:644). Reports further indicate that 93% of teens are active users of the internet and 75% own a cellphone (Schneider, O'Donnell, Stueve & Coulter, 2012:171). More than 3,2 million are victims of bullying annually. One of the largest studies conducted online in 2008 indicated a prevalence rate of 72%, with youth between the ages of 12 and 17 reporting at least one incident of "cybervictimisation" (Bauman, 2013: 251). A study done in 2011 found that 53% of adolescents aged 12-13 were victims of cyber-bullying (Aftab, 2011, in Kowalski et al., 2014: 1108).

The latest figures from the USA indicate prevalence at between 10%-40%, once again depending on the definition used to depict online aggression (Kowalski et al., 2014:1108). Both Bauman (2013:250) and Kowalski et al. (2014:1074) refer to the "difference" in prevalence rates and ascribes these to the "different definitions" used in research. Kowalski et al. (2014:1074) also sets out the different prevalence rates in different countries, and indicate cyberbullying to be a worldwide problem in schools. A dispute exists in the USA on whether cyberbullying has increased or decreased over the years, but it is asserted as still being a "serious problem confronting youth today" (Kowalski et al., 2014:1108).

The overlap between bullying and cyber-bullying is substantial; with nearly "two thirds" of cyberbullying victims reporting that they were "bullied at school" as well (Schneider et al., 2012:175). An estimated 160,000 children miss school every day out of fear of attack or intimidation by other students. A total of 72% of teens reported at least one incident of bullying online (name calling, insults via instant messaging or social networking sites), but 90% did not report the incident to an adult (Berkshire District Attorney's Office, 2015:1). Taking into account that teenagers' use of cellphones and text messaging has increased from 45% to 75% since 2004; that 72% of teens make use of this message service, and that 22% of teens check their social networking sites more than 10 times per day (Lenhart, Ling, Campbell & Purcell, 2010:1), there is clearly a dire need to address cyberbullying.

In South Africa specifically, a study by the Centre for Justice and Crime Prevention proposed that almost a third of the more "traditional" bullying could be ascribed to cyberbullying (Burton & Mutongwizo, 2009:1). The Centre's study among 1,726 adolescents also found that 46.8% had experienced some form of cyberbullying (Burton & Mutongwizo, 2009:1-2). In addition, in 2011, it was found that 36% of learners in primary and secondary schools had experienced cyberbullying (Davids, 2011; Unisa, Bureau of Market Research,2011).

Clarifying certain cyberbullying terminology and categories

Cyberbullying should firstly be distinguished from cyberstalking, which is the use of electronic communication to follow an individual or groups of individuals with the intent to initiate in person contact, generally through a pattern of threatening or malicious behaviour. As such, cyberstalking could be seen as the more dangerous form of cy-berbullying, in that a real, credible threat of harm exists (National Conference of State Legislatures, 2015). Moreover, although cyberbullying and cyber harassment are terms that are sometimes used interchangeably, the former usually refers to the electronic harassment of minors within a school context. This paper focuses on cyberbullying specifically.

Another important distinction is that to be made between so-called 'sexting' and cyber-bullying. These two are regarded as separate phenomena in South Africa, but are often concurrent. While cyberbullying is defined as "acts involving bullying and harassment through the use of electronic devices or technology", sexting is described as a combination of texting and sex, involving the sending of nude or semi-nude photos or videos and/or suggestive messages via mobile texting or instant messaging (Badenhorst, 2011:2). For example, in Springs, Gauteng, a peace order was granted against a 16-year-old girl for allegedly humiliating another 16-year-old girl at her high school on MXit, calling her a "slut" (Badenhorst, 2011:6).

In 2006, seven subcategories of cyberbullying were devised by Smith, Mahdavi, Carvalho and Tippet (2006:1), namely "text message bullying, picture/video clip bullying (via mobile phone cameras), phone call bullying via mobile phones, email bullying, chat-room bullying, bullying through instant messaging and bullying via websites". South African researchers have since added internet gaming and social networking sites such as Face-book and Twitter as ways in which cyber-bullying can be practised. According to Badenhorst (2011), cyberbullying can take the form of harassment (frequently sending cruel or threatening messages to a person's e-mail account or mobile phone); denigration (sending or posting malicious gossip or rumours about, as well as digitally altered photos of, a person to damage reputation or friendships); impersonation or identity theft (posing as another person after breaking into that other person's email account or social networking account); outing (the sharing of secrets or embarrassing information online with others with whom this should not have been shared); cyberstalking (similar to traditional stalking in that it involves a real threat of harm, either through repeated online harassment or stalking); happy-slapping (where people would walk up to others and slap them, with the action being captured by another using a mobile phone camera); and sexting (focusing on the involvement of children or minors, which could in some instances be classified as child pornography).

The impact of cyberbullying on learners, schools and education

At an individual level, it has been shown that cyberbullying leads to "low self-esteem, academic problems, delinquent behaviour" and, last but certainly not least, "suicidal thoughts" and "suicide" in learners (Goodno, 2011:645). Adolescents who contemplated suicide were "twice as likely" to have contemplated such behaviour, due to having experienced cyberbullying (Hinduja & Patchin, 2010:204). Cyberbullying has been described as being more pernicious than traditional bullying, since it allows for the "gradual amplification" of cruel and sadistic behaviour, and may cause an extreme emotional response, for instance a victim taking his or her own life (Belnap, 2011:501). In their study, Adams and Lawrence (2011) found that the negative effects associated with being bullied as a school learner continue into the college years, which would obviously detract from such victims' ability to perform acade