Digital Technology: Safe and responsible use in schools
The following guide is a companion to the Guidelines for the surrender and retention of property and searches.
1. Intimate photos taken with a smartphone
Students ‘A’ and ‘B’ were in a relationship that ended acrimoniously. Student ‘A’ complained to the Dean that Student ‘B’ had some intimate photos of her on his smartphone, which he had threatened to send to others. Student ‘A’ was distraught and asked the Dean to confiscate Student ‘B’’s phone and delete the photos.
Is unlawful conduct involved?
Depending on the context surrounding this incident an unlawful act may have already taken place. For example were the images:
- taken covertly by Student ‘B’ i.e. without Student ‘A’’s knowledge or consent?
- being used to intimidate, threaten or harass Student ‘A’?
- obtained through coercion or through other predatory behaviour?
If it is believed that a criminal offence has occurred referring this matter to the Police is the appropriate course of action. Prior to handing a device to the Police, ensure that it is managed in an electronically secure way.
If the images were published as threatened by Student ‘B’, this action could either be an infringement of civil law (e.g. Student ‘A’ could own the copyright of the images or have their privacy invaded by this action) or a criminal offence (e.g. if Student ‘A’ was a child).
Depending on the context, there could also be other problematic online or offline behaviours such as the threat of, or actual, physical harm. If the school has reason to believe that a criminally unlawful act has occurred the Police should be contacted directly for advice. For infringements of civil law the school should follow its relevant policies.
Does the Education and Training Act 2020 apply to this scenario?
Regardless of whether unlawful conduct is involved; the reported behaviour of Student ‘B’ was inappropriate and it has had an immediate impact on the emotional safety of a student and possibly the school’s wider learning environment. The school can respond to the threat to publish the images on the basis that, if carried out, this will have a potentially harmful effect on Student ‘A’. The primary goal for the school is to prevent the images from being published online, as this future action would impact on Student ‘A’.
Is confiscation (surrender) of the device an appropriate course of action?
Surrender and retainment of the device are appropriate actions in this scenario, primarily because there is good reason to believe that the phone provides a channel for publishing the images. The images may already have been copied to another device or uploaded to the internet, perhaps to a file storage website.
Is deletion an appropriate course of action?
Key questions that will inform schools whether requesting the deletion of the images is appropriate are: “If it were possible, would the act of deleting the images in and of itself resolve the issue and minimise the harm?” and “Will deleting images from the phone prevent the images from being published at some point in the future?” The most likely answers to these questions are “no” and “possibly”.
An effective solution will have a strong focus on Student ‘B’’s behaviour. For example, does Student ‘B’ understand that ‘trust in a relationship’ is a principle recognised in civil and criminal law i.e. that such intimate images need to be treated appropriately during and after the relationship ends
Questions and comments
- Is this inappropriate or unlawful conduct? Factors to consider include:
- Are the images objectionable material? Refer to page 45 for definition.
- Is age an important factor in this incident? For example, the images could constitute objectionable material, depending on the age of Student 'A'. Is Student 'B' an adult and Student 'A' a child?
- Were the images taken covertly, without the knowledge or consent of the person? (Note that images taken with legal consent are not covered by law)
- Is there an element of coercion? For example, blackmail for more images, images of friends or money?
- Is there an element of threatening, intimidating or harassing behaviour relating to physical harm to person or property (as defined by the law)?
- Did Student 'A' take the original image? If so, Student ‘A’ owns the copyright and permission would be required from Student 'A' for the images to be published.
- The phone and the images are important, but the primary focus is on student behaviour.
- The threat to publish the images is clear, but is it an isolated event? What is the wider context of this incident? Has the dispute between the students been ongoing and, if so, how has this manifested itself? Is the whole problem understood?
- Student 'B' has been identified by Student 'A', meaning that online anonymity is obviously not an issue. Both students can be easily interviewed, and, if required, their parents/caregivers contacted.
- Even though Student 'B' is easily identified, consider that there are likely to be 'bystanders' to this incident. Is it useful to locate them? If so, how?
- Is deletion an appropriate response to resolving the issue? For example, deletion from the phone may not achieve the desired result. To successfully delete all copies requires knowing and accessing all places it is stored.
- If a school is overtaken by events and the images are posted online, a request can be made to the hosting service for them to be removed. Seek advice from NetSafe on this.