By Katy Barnett
In a follow-up to my post on cyber-bullying, the Australian government are intending to amend the Sex Discrimination Act 1984 (Cth) in an attempt to deal with the phenomena of cyber-bullying and “sexting”.
1. Current provisions of the Sex Discrimination Act
Presently, s 28F of the Sex Discrimination Act prohibits “sexual harassment” in educational institutions in the following terms:
(1) It is unlawful for a member of the staff of an educational institution to sexually harass:
(a) a person who is a student at the institution; or
(b) a person who is seeking to become a student at the institution.
(2) It is unlawful for a person who is an adult student at an educational institution to sexually harass:
(a) a person who is an adult student at the institution; or
(b) a member of the staff of the institution.
(3) In this section:
“adult student” means a student who has attained the age of 16 years.
“Sexual harassment” is defined by s 28A of the Sex Discrimination Act as follows:
(1) For the purposes of this Division, a person sexually harasses another person (the person harassed ) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
(2) In this section:
“conduct of a sexual nature” includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.
Section 28F applies only to harassment by persons within the same educational institution as the complainant, and also requires the complainant to be over 16 years of age.
2. Proposed amendments to the Sex Discrimination Act
The Age reports that a variety of amendments are proposed, including a change to the age of persons who can sue for sexual harassment, and an extension of the organisations in which sexual harassment may take place:
The changes…will mean that for the first time students under the age of 16 will be able to resort to the Sex Discrimination Act, provided perpetrators are over the age of 16.
The overhaul will also mean that sexual harassment laws will no longer be limited to staff and students within the same schools but are extended to cover peers or teachers from other institutions who might mingle at combined events such as sporting carnivals and theatrical productions.
I wonder if the amendments will include reference to modern technology for the avoidance of doubt on the matter?
3. Students harassing staff?
The present Act and the proposed amendments do not seem to cover the possibility of students sexually harassing staff.
There has been a recent case in South Africa on this point (hat tip: Obligations Discussion Group): Le Roux & Ors v Dey  ZASCA 41. The case arose when a 15-year-old student (the first defendant) found a picture of two gay bodybuilders in a compromising position when searching the internet. He replaced the heads of the bodybuilders with photos of the principal and the vice-principal of his school, and obscured the genitals of the men with a school badge. The first defendant sent the photo to a friend, who then texted it to various other students, including the second defendant, a 17-year-old student at the school. The photo was quickly disseminated through the student body. The second defendant printed out the photo and displayed it to a teacher and other students. Then the second defendant persuaded the third defendant, another 17-year-old student, to place the photograph on the school notice board. The photograph was soon discovered by another teacher and removed.
The plaintiff, the vice-principal whose head had been featured in the manipulated picture, brought a claim for sentimental damages for two delicts (or wrongs): the infringement of his dignity (dignitas) and reputation (fama). The plaintiff appears to have been a devout Christian who suffered acute embarrassment and humiliation as a result of the publication of the doctored photograph. The North Gauteng High Court held that the defendants were liable for infringement of dignity and reputation, and awarded R45,000 against the defendants. The defendants appealed.
On appeal, a majority of the South African Supreme Court of Appeal upheld the claim in respect of the injury to reputation, and upheld the quantum of damages. The majority found that there was only one relevant cause of action, and the action for injury to reputation encompassed infringement of dignity. By contrast, in the minority, Griesel AJA found that the conduct amounted to an infringement of the plaintiff’s dignity, not his reputation, but still upheld the amount of the award.
What would occur if something like this happened in an Australian school? Let us presume that a 17 year old student disseminated sexually explicit photos which were manipulated to depict a teacher in a compromising position. The provisions of the Sex Discrimination Act as they presently stand would not cover this conduct (which seem only to contemplate harassment by teacher to student), and it does not seem that the amendments will change this. I suspect the teacher would have to rely on defamation. We do not have a tort of injury to dignity, although as discussed in my previous post, there have been obiter suggestions by Maxwell P in Giller v Procopets that Australian law might adopt a tort of intentional infliction of mental suffering, similar to that which exists in the United States.
4. Protection from Harassment Act 1997 (UK)
There has been discussion among the Obligation Discussion Group (Melbourne Law School) as to whether the Protection from Harassment Act 1997 (UK) would cover instances of cyberbullying between students. We do not have an equivalent Act in Australia. Section 1 of the Act prohibits “harassment”, and s 2 confirms that a breach of s 1 is an offence. Section 3 gives the person who is the victim of the harassment a civil remedy against the perpetrator. Section 4 provides that putting people in fear of violence is an offence.
The general consensus seems to be that the Protection from Harassment Act would potentially apply to a case of cyberbullying between students. “Harassment” is not actually defined in the Act, although s 1(2) specifies, “the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.” Section 7(2) also provides that harassment includes “alarming the person or causing the person distress.”
In Majrowski v Guy’s and St Thomas’ NHS Trust  UKHL 34 , Lord Nicholls said at :
Where…the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody’s day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2. (emphasis added)
Baroness Hale noted at  in the same case:
A great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour.
Lord Nicholls “oppressive and unacceptable” test was applied and elucidated last year in two cases of the English Court of Appeal. In Ferguson v British Gas Trading Ltd  EWCA Civ 46 the Court of Appeal confirmed that the test was whether the conduct was “oppressive and unacceptable”, and thus worthy of criminal sanction. It was emphasised that the course of conduct must be grave. In Veakins v Kier Islington Ltd  EWCA Civ 1288, a case involving workplace bullying, the Court of Appeal again applied the “oppressive and unacceptable” test. The Court ultimately found that, although harassment would not usually be present in a workplace context, in this case it was present on the facts because of the extraordinary severity of the conduct. Malice was not required to establish harassment, but establishing malice made it easier to establish that the conduct was “oppressive and unacceptable”.
Thus, depending on the nature and severity of the cyberbullying, if conduct was grave, oppressive and unacceptable it may fall under the Act. It was also noted in the ODG that defamation would be another cause of action available to a UK victim of cyberbullying. And, as I have noted in my earlier post, a defendant was charged with making threats to kill over Facebook in a schoolyard bullying context.
5. Conclusion — other questions for organisations to consider
When I was in the final years of primary school, there was a student who had been held back because of learning difficulties. He was somewhat older than his classmates, and had come from a different school. He used to behave in an inappropriately sexual fashion in class, and sexually harass female students repeatedly. I’m not sure if the teachers were aware of the extent of the problem, and if they were, I suspect that they didn’t know what to do. This kid once held me up against the lockers and thrust himself against me, which was pretty scary. After I attempted to kick him and said I’d scream, he left me alone. The interesting thing was that, in the absence of any appropriate response from the teachers at the school, the other boys policed this kid and used to beat him up for inappropriate behaviour towards girls. Of course, the boys who beat up the kid used to get in trouble. I wish I’d been articulate enough at that age to explain to the school administration why they’d done it.
I was also thinking of a school teacher friend of mine who recently started teaching at a new school and found that a large proportion of the male students had a habit of publicly, erm, “adjusting” or “fiddling” with themselves in class or when in conversation with the teacher. My friend was taken aback by this behaviour, and went to talk to the school administration after a younger female colleague confessed she felt very uncomfortable around the male students, but he was told that any problems were his, not the students’.
Schools and other organisations (orchestras, sports teams & etc) will have to be careful to police this kind of behaviour. Obviously the example of the highly sexual primary school student wouldn’t be covered by the amended or present Sex Discrimination Act because the kid was too young, but the second scenario might be caught by the Act if some female students complained about the conduct of a male student and were offended by it.
I guess the question remains as to always question how appropriate it is to police this kind of behaviour with laws. I’m not a libertarian. I think it’s appropriate to have some kind of regulation to prevent discrimination and sexual harassment. Nonetheless, a close inspection of the Sex Discrimination Act worried me. The conduct described in s 28A includes conduct of a sexual nature which offends, humiliates or intimidates. (Cue song: Which one of these things is not like the other things?)
To my mind, offence is very different to humiliation and intimidation. Humiliation and intimidation seek to belittle the person’s standing as an equal human being in the eyes of the community. In a Kantian sense, the perpetrator inflicts a moral injury by trying to belittle the other. By contrast, offense is a very subjective concept. Some girls may be offended by seeing that a boy had a picture in his locker of a voluptuous semi-naked babe, but the boy never intended to create offence in others, and merely kept the picture in his locker for his own daydreams. If I were seeking to extend the provisions of the Sex Discrimination Act to cyberbullying and “sexting”, I’d cut the “offence” part, but leave the humiliation and intimidation, because that is the kind of conduct we really want to prevent.
Katy Barnett is a PhD candidate at the Melbourne Law School