School law: Cyberbullying in social networks and legal implications for schools

VGH Baden-Württemberg, decision of 12 May 2011, Ref.: 9 S 1056/11

 

Cyberbullying on the internet (e.g. via social networks available on the internet such as Facebook or StudiVZ) is increasingly preoccupying the courts.

Boys in particular are increasingly becoming victims of this modern form of pillorying and are exposed to humiliation in and outside school.

However, as most posts on social networks are made outside of school hours, the question often arises as to what extent the school can take action against cyberbullying.

In NRW, the legal foundations of the school system in NRW are set out in the School Act for the State of North Rhine-Westphalia (Schulgesetz NRW - SchulG).

§ Section 53 SchulG contains the educational interventions and disciplinary measures provided by the SchulG NRW.

According to § 53 Para. 2 SchulG NRW, educational influences include in particular

      • the educational dialogue
      • the admonition
      • Group discussions with pupils and parents
      • verbal or written disapproval of the misconduct
      • exclusion from the current lesson
      • rework under supervision after prior notification of the parents
      • the temporary removal of objects
      • measures with the aim of making good the damage caused and
      • the assignment of tasks that are likely to highlight the misconduct

§ Section 53 (3) SchulG NRW provides for the following disciplinary measures:

      • the written reprimand
      • Transfer to a parallel class or learning group
      • temporary exclusion from lessons for one day to two weeks and from other school events
      • the threat of dismissal from school
      • Dismissal from school
      • the threat of expulsion from all public schools in the country
        by the higher school supervisory authority
      • the expulsion from all public schools in the country by the
        Upper school supervisory authority

Extracurricular behaviour such as cyberbullying can only lead to the imposition of a disciplinary measure if it has a directly disruptive effect on school operations and is directly related to school attendance.

A direct connection to the school relationship exists in particular if the misbehaviour has a direct impact on the school environment.

This is the case if the coexistence of those involved in school life has been disturbed or jeopardised by the misconduct and if the disciplinary measure is therefore suitable and necessary, among other things, to work towards non-violent interaction between pupils.

In the above-mentioned decision, the Administrative Court of Baden-Württemberg had to decide in summary proceedings whether Internet entries made during leisure time are school-related and therefore suitable for an expulsion from school.

Facts of the Case:

Applicant had insulted a classmate on the internet

In December 2010, the applicant had posted a blog entry on her page in the Internet forum "kwick.de" in which she labelled a fellow pupil - albeit without naming her - as a "punk bitch", "a bit asocial" and "assi" (repeatedly), attested to her "courage to be ugly" and claimed that she would "ultimately be allowed to finance Hartz IV for the person concerned later".

School had banned the applicant from attending classes

Due to these insults, the school imposed a temporary ban on the applicant from attending classes.

Decision of the VGH Baden-Württemberg

The Administrative Court of Baden-Württemberg ruled that in this case there were considerable doubts as to whether all the conditions were met for the applicant to be temporarily excluded from lessons in accordance with § 90 para. 6 sentence 1 SchG.

Court saw teaching ban as too strong a measure

Temporary exclusion from lessons or the threat thereof is only permissible if a pupil has violated his or her duties through serious or repeated misconduct, thereby jeopardising the fulfilment of the school's mission or the rights of others.

Although the applicant was guilty of misconduct, it appeared questionable whether, given the particularities of the present case, the applicant had thereby jeopardised the rights of her fellow pupil or the fulfilment of the school's task in a sufficiently serious manner to justify the imposition of a temporary - even if only one-day - exclusion from lessons.

The present constellation has special features that give rise to doubts as to whether the degree of dissemination of the offence here corresponds to the risks generally posed by posting a statement on the Internet.

The "enormous spread of statements on the internet" had been particularly emphasised in the minutes of the meeting.

This approach undoubtedly applies if the addressee of such statements can also be clearly identified by third parties.

The applicant's posting did not reveal the name of the classmate

However, this was not the case here. The web blog contained neither the clear name nor the user name of the person concerned and the applicant's entries were not linked to a pictorial representation of the person concerned.

Thus, the spread of the insults is not so great that it would justify a ban on teaching

This means that the insults mentioned are only attributable to those of the persons concerned who already know them or have been expressly informed of them by the applicant and the entry is therefore more likely to be comparable in its meaning to an insult in the circle of acquaintances than to the typical dangers of spreading insults to an unmanageable number of Internet users.

In addition, an effect extending beyond the circle of acquaintances had already ended on the day on which the applicant was confronted with her misconduct by the applicant herself deleting the entry.

Source: VGH Baden-Württemberg

Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.

If you need legal advice, feel free to call us at 0221 – 80187670 or email us at info@mth-partner.de.

Leave a Reply

Your email address will not be published. Required fields are marked *