Legal opinion: who is responsible if a child is harmed by screen use in school?
In a previous post, we talked about the introduction of legislation in the US specifically to protect students from harm due to excessive screen use in school.
After receiving a number of questions on the topic, for this blog post we have asked an Auckland Lawyer to write an opinion piece on the possible legal outcomes if children are found to have been harmed from excessive/inappropriate screen use in schools in New Zealand.
Excessive and Inappropriate Screen Use in Schools - A Legal Ticking Time Bomb?
I’m a father of four primary school age children, and a partner in a large Auckland law firm. I’ve been asked to write this opinion piece to provoke further public discussion and consideration of the issues surrounding the use of screens/technology in schools.
The New Zealand Ministry of Education (MOE) requires all schools to implement a new technology ‘digital curriculum’ from January 2020 to prepare children for the modern workforce. The actual curriculum is, in my opinion, vague and confusing and in any event ultimately ‘leaves it up to schools’ to decide how to achieve its goals, with boards of trustees (BOT) being responsible for students‘ digital safety. See https://parents.education.govt.nz/secondary-school/learning-at-school/learning-using-digital-technologies/
Different schools have as a result taken different approaches to achieving the MOE’s technology curriculum ... meaning New Zealand schools now differ markedly in how they use technology and screens to educate our children. This is concerning for a variety of reasons but the areas of focus for this article are the legal implications for schools, should their unique approach prove contrary to the best interests of our children.
There are an increasing number of studies into the importance of moderate screen use; recommended daily time limits (dependent on age); the medical issues arising from excessive use; and the academic impact from a results perspective.
The New Zealand Ministry of Health and the World Health Organization have both produced recent recommendations by age for appropriate screen use per day; for example, the Ministry of Health recommends no more than two hours of recreational screen use per day for children aged 5 to 18 years.
Computer companies themselves provide recommendations (and limitations of their own liability) as to appropriate use of the hardware they sell, though usually these are buried in the fine print and simply “accepted” by consumers by the click of a button.
So where does this all leave schools?
What if, in 5 or 10 years, there is clear empirical data proving excessive and/or inappropriate screen (and headphone) use by school age children increases the risk of hearing loss; vision pathology, psychological dysfunction as a result of inappropriate content exposure (i.e. porn; violence); social dysfunctionality; weaker academic performance; or obesity? Early studies and findings already exist citing each of these issues. See https://www.sensiblescreenuse.org/risks
Will schools be at legal risk from ex-students claiming the schools themselves permitted or even dictated the use of screens without ensuring students were properly protected? Could individual teachers be included in class action law suits as co-defendants? Are Boards of Trustees culpable? The MOE would likely seek to avoid responsibility/liability by referring back to its policy that schools determine for themselves how to satisfy the new digital curriculum - yet would that really be a defence to a negligence action against the country’s education overseer?
Here’s a more practical (and true) example. A teenager watched the Christchurch massacre at school on their own device. The student developed symptoms of post traumatic stress disorder (PTSD) and required psychological intervention and counselling. Can the child/their parents hold the teacher/school/BOT/MOE accountable for the harm sustained by the child while under the care and supervision of the school?
Would it be enough for the school to say they relied on (the education standard) internet safety network N4L, despite surveys showing that principals and teachers openly acknowledge that students remain able to and do access pornography and other inappropriate internet material at school? If prosecuted, would the school be held only to a ‘reasonableness’ test (i.e. has it acted reasonably to protect its students from digital risk); or would a Court impose a higher standard of care (i.e. best endeavours) given its caregiving capacity, and the vulnerability of children? Is a contract signed by the student saying that they will only use their devices for educational purposes a possible defence (unlikely in my view since minors can’t be legally bound by ‘contracts’).
My only conclusion - and advice to the schools, for what it’s worth - is to carefully consider your policies and procedures for managing and monitoring screen use and technology for our children. I would urge a conservative and case-specific adoption appropriate only to the desired learnings, in an environment where teachers are able to ensure those objectives are achieved. Screens and computers can be an incredible tool, but in the wrong (or youthful) hands may well prove more harmful than anyone can currently contemplate.
McVeagh Fleming Lawyers