REGULATING CYBERBULLYING: THE DILEMMA OF SCHOOL POLICIES AND FREEDOM OF EXPRESSION

Abstract

This paper argues for an update to the South African Schools Act to include the regulation of learner-based cyberbullying, rather than relying on piecemeal school policies. Although school codes of conduct for learners can regulate cyberbullying, currently there is no clear legislative approach to regulate it. Bullying, regrettably, is a common and long-standing problem that is typically associated with schoolchildren. This conduct may take many forms including physical, verbal and psychological aggression. As technology advanced, bullying migrated online and became known as “online bullying” or “cyberbullying”. Cyberbullying poses a new challenge to its regulation, where schools formerly regulated traditional bullying. Due to its ongoing nature, cyberbullying can affect children at any time and any place, unlike traditional bullying, which is usually confined to the school grounds or requires physical interaction. The primary purpose of this research is to determine whether schools have the ability to regulate cyberbullying. In countries such as the United States, cyberbullying has been met with mixed responses and school policies have been struck down for unduly encroaching on learners’ human rights. Laws regulating cyberbullying therefore need to be carefully drafted to avoid constitutional scrutiny. A recent introduction of a Social Media Charter by the South African Human Rights Commission attempts to address cyberbullying and other online harms. However, this document is not “hard” law and only offers suggestions in addressing cyberbullying.