While risks posed by forms of abusive behaviour such as cyber-bullying and grooming have been emphasised, both in the mainstream media and in policy responses, comparatively little attention has been given to the potential legal risks that children and young people may face when they use social networking services (SNS).The project identified areas of the law that give rise to possible legal liability for young people using SNS -
This study surveyed 1004 middle school students (years 7-10), 204 middle school teachers and 49 parents of middle school students. In addition focus group interviews were conducted with 58 middle school students and 21 middle school teachers. The data was collected from 17 Victorian secondary schools from state (government run), Catholic and independent systems as well as metropolitan and rural locations.
In addition to collecting this empirical data, the authors conducted a comprehensive review of the literature, SNS Terms of Service (ToS), and the Australian and International regulatory environment.
• Privacy, disclosure and breach of confidence;The authors conclude that young people, their parents, and teachers are generally aware that use of SNS can give rise to risks that must be managed. However there was a "worrying lack of understanding of the nature of the legal risks". They comment that although, strictly speaking, minors may not be held legally liable for breaching the Terms of Service (ToS) of SNS, the understanding by minors of obligations has implications for how those people may understand their obligations in the future (ie when they become adults), as the ToS are likely to be binding on adults.
• Intellectual property rights, especially copyright infringement;
• Defamation; and
• Criminal laws, including harassment and offensive material.
Key findings are that -
1. 94.9% of surveyed middle school students (years 7 to 10) have used SNS.Key recommendations were -
2. Facebook is the most popular SNS (93.4% of students), followed by MySpace (26.6% of students). Many students use more than one SNS.
3. The majority of surveyed students update information on their SNS at least every day. Over a quarter update their SNS profile several times a day.
4. The students use SNS primarily to maintain current social networks. Making new friends and flirting were relatively low in students’ reported practices.
5. 80.4% of parents indicated that they had seen their child’s SNS profile at least once.
6. The most common content reported as posted to SNS by surveyed students is photographs of themselves (60.9%), closely followed by photographs of their friends (52.6%). Nevertheless, posting of third party content, including music, video and photos of celebrities, is still significant. The proportion of students posting videos to SNS increases with age.
7. A significant proportion of students (45.6%) reported that their photos had been posted on their friends’ SNS. The majority of students were not concerned with this practice.
8. The most highly valued feature of SNS was the ability to stay in touch with friends and family. SNS are also perceived to be less expensive than other forms of communication.
9. Surveyed students felt that SNS were safer than did their teachers and parents. Thus, while 48.8% of students recognised that there was some element of risk in using SNS, more than one quarter (28.3%) thought that SNS were safe. Moreover, 19.6% of students were ambivalent about risk, essentially reporting that the degree of risk was irrelevant to them as it is “just what everyone does”.
10. Students from years 7 to 10 are increasingly more selective in who can see their profile. The survey results suggest that year 7 students not only have more visible profiles, but are more likely to perceive SNS as safe or only a little bit risky.
11. 72.4% of surveyed students indicated that they had had unwanted or unpleasant contact by strangers via their social networking profile.
12. 13.8% of students were concerned about security risks, such as identity theft. A small group of student respondents (3.2%) identified concerns relating to privacy or unwelcome disclosure of data.
13. Parents and teachers were particularly concerned with issues of cyber-bullying, and grooming or stalking, with a lesser number expressing concerns about identity theft and disclosure.
14. Despite the acknowledged risks of students using SNS, there is surprisingly little ongoing conversation about SNS use between parents and their children, on the one hand, or teachers and their students, on the other. In this respect, almost half of the surveyed students (46.1%) reported that they did not talk with their parents about SNS use, while almost three quarters of the students (74.6%) reported that they did not talk with their teachers about SNS use.
15. Surveyed students reported an awareness of a variety of strategies for avoiding risks or problems associated with SNS use, including ignoring ‘friendship’ requests from strangers, blocking or deleting unpleasant or unwanted friends, setting their profile to ‘private’, not disclosing personal details, frequently changing their password, threatening people who wished to be added to the student’s SNS and self-censorship. Only 1% of respondents reported asking for guidance or help from adults as a viable strategy.
16. The majority of teachers have not used SNS in an educational context. However, a significant minority (36.1%) of the teachers who were asked this question indicated that they had used SNS for educational purposes, including communicating with their students about schoolwork.
17. The majority of teachers who were surveyed on the issue indicated that they were generally aware of risks, including legal risks, of teachers using SNS. However it is also clear that teachers had a variety of understandings about the specific nature of this risk.
1. In order to enhance the benefits of SNS use, and minimise the disadvantages, it is important for children and young people to be equipped with the necessary information to empower them to effectively manage risks associated with the everyday use of SNS. The best way to do this is through specifically tailored educational activities. As children and young people must be primarily responsible for managing their own risks, it is essential that educational activities focus on providing clear and accurate information about all risks associated with SNS use, including legal risks. These educational activities should be aimed primarily at equipping children and young people with the skills required to be effective digital citizens, and not focussed on rare or hypothetical fears.
2. Education about the full range of legal risks potentially encountered by the use of SNS should be part of a fully integrated cybersafety school curricula. This means that attention that is properly given to more dramatic issues, such as cyber- bullying and ‘sexting’, should be balanced with attention to other potential areas of legal liability. This strategy should also assist in promoting awareness of, and debates about, the Australian legal system as it applies to online activities. While acknowledging the crowded nature of school curricula, the importance of SNS in the lives of students, and the potential significance of social media for future digital citizenship, suggests that room should be found for these issues to be directly addressed.
3. The best way to approach the teaching of legal literacy in the digital environment is by the use of practical examples drawn from real life case studies. With this objective in view, one of the outcomes of this project is the Education Resource Book, which includes a series of classroom exercises aimed at promoting understanding and discussion of specific legal issues. The researchers for this project encourage the production and use of this and similar resource material for the use of teachers of middle school students.
4. The reported prevalence of posting of photographs of students to SNS, suggests that the legal and ethical issues involved with the posting of photographs – which include privacy, confidentiality, defamation and copyright – merit specific attention in any cybersafety curriculum. The significance of understanding these issues is emphasised by the incidents involving a Melbourne teenager posting naked photos of AFL footballers to her Facebook site.
5. The potential disparities in the approaches to, and understandings of, legal risks associated with SNS use between parents, teachers and students, as well as the reported paucity of communication using SNS between students and parents and teachers, suggests that there is some need for education and training of teachers and parents, as well as students. Much can be gained by the community from greater informed discussion of the implications of SNS use, including legal implications, among parents, teachers and students.
6. Consideration should be given by Commonwealth, State and Territory authorities to encouraging SNS service providers operating in Australia to enter into a self- regulatory agreement similar to the Safer Social Networking Principles for the EU. This would provide baseline commitments against which practices of SNS service providers in their dealings with young people could be periodically assessed.
7. Given the concerns expressed by teachers interviewed for this project, there appears to be an identified need for further guidance to be provided to teachers about the use of SNS, especially in the pedagogical context. In particular, there is a pressing need for research and policy work to be undertaken in determining the extent of the ‘duty of care’ owed by teachers in any interactions with students via SNS. In this respect, it is important that the salient differences between interactions via SNS, and interactions offline, including the different legal implications, are fully taken into account.
8. There is a need to promote holistic policy responses to the full range of risks associated with the use of SNS by young people. Any responses should be coordinated so as to minimize the risk of fragmented, inconsistent, and potentially contradictory, policy initiatives at the Commonwealth, State and Territory levels. If, following the forthcoming report by the Commonwealth Joint Select Committee on Cyber-Safety, it is decided to establish an Online Ombudsman, the Ombudsman’s portfolio should extend to promoting education about the full range of legal risks associated with the use of SNS. In doing so, the Ombudsman should coordinate with Commonwealth, State and Territory Privacy Commissioners.
