We live in an age of social media, where an increasing number of students are using sites like Facebook and Twitter on a daily basis. This move away from traditional modes of communication provides universities, colleges and schools with new and exciting ways to interact with members of their community, but also raises problems as a small number of users rely on the perceived anonymity provided by social media to bully and denigrate students, teachers and the institution itself.
The misuse of social media can have a detrimental effect on the wellbeing of those targeted, as well as severely tarnishing an educational institution’s reputation. In an attempt to combat these issues, the law is evolving to balance the right for freedom of expression against the distress caused by the misuse of social media.
Helen Otty and Andrew McGregor, in DWF’s Commercial Litigation team discuss the issues around social media for educational institutions.
What to look out for
Many students, teachers, lecturers and educational institutions have social media accounts across different sites and they could all be targets for online abuse. The two most common types of abuse are popularly referred to as ‘trolling’ and ‘cyberbullying’.
- ‘Trolling’ involves internet users deliberately posting offensive and provocative comments in open online forums to insult and incite a reaction from others.
- ‘Cyberbullying’ is a more direct form of abuse, where users harm or harass other people, in a deliberate, repeated, and hostile manner.
Students tend to be more susceptible to cyberbullying and there have been several recent news stories of children being bullied via popular websites. Teachers and lecturers can also fall victim to the same kind of abuse, both from past and current students, and allowing such incidents to go uninvestigated can have an understandably negative impact on staff morale. Similarly, the educational institution itself can be a target for internet trolls, potentially tarnishing its reputation, which could have serious consequences when trying to attract new students.
How to tackle social media abuse
The law allows for freedom of expression. However, when an individual crosses the line and abuses that right, by trolling or cyberbullying, an educational institution may consider bringing an action for defamation or harassment.
The legal definition of defamation is “the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally”. Defamation claims are subject to a one year limitation period from the date of publication, so the defamed person therefore has one year to bring the claim. The courts have determined that, where a defamatory statement is published online and accessible to the public, a re-publication is deemed to occur each time a reader accesses the article. For that reason, the limitation period for an online publication, for example Facebook, is potentially ongoing until it is removed.
If a statement is defamatory, the court will award damages for injury to the feelings of the individual and for any financial losses incurred as a result. It should be noted that defamation proceedings are only available for teachers, lecturers and students, the institution itself will be exempt as it is classed as a public body.
If the defamatory statements are repeated or accompanied by threatening or abusive correspondence then this is likely to constitute harassment against the individual. Unlike defamation, harassment can apply where messages are sent directly to the individual but not to any third party. Harassment can be pursued through a civil claim for an injunction or a criminal investigation in line with the Protection from Harassment Act 1997. A person found guilty of an offence under this legislation can be liable on conviction to imprisonment for a term of up to six months and/or fine of up to £5,000.
When considering either option, an educational institution must be aware of the costs that each course of action will entail. Civil actions for defamation or harassment can cost tens of thousands of pounds and are ultimately unlikely to be recovered from financially limited students who may have perpetrated the abuse. However, educational institutions may consider these costs reasonable to help deter internet trolls and protect staff and student wellbeing along with the institution’s reputation.
Lifting the veil of anonymity
A cyberbully’s actions are often a result of the perceived anonymity on social media sites. To combat this, the courts have developed the ‘Norwich Pharmacal’, which compels third parties, such as internet service providers, social media networks and online social forum providers, to disclose the identity and contact details for the user of an account or IP address, enabling internet bullies to be tracked down easily.
An internet service provider is unlikely to disclose personal details about their customer without this order, therefore an institution must apply to the court. Once the order is granted, it can be served on the internet service provider to start the process of disclosure. This can be a very effective tool against a perpetrator’s anonymity and may inform a decision to bring a claim under defamation or harassment as detailed above.
When extreme social media misuse occurs, Institutions should consider reporting the incident to the police. New Director of Public Prosecution guidelines came into effect on 20 June 2013 and indicate that a prosecution will only occur if there is a “credible threat” or if the incident is so grossly offensive that a prosecution is in the public interest.
In serious cases, police have been willing to bring prosecutions, often in line with section 127 of The Communications Act 2003, which prohibits “the sending of a message of a menacing character by means of a public telecommunications network”.
Social media policy
It is advisable that an institution adopts an adequate social media policy both for students and staff members. These policies should highlight what is expected in terms of reasonable use and how it will deal with breaches of the policy.
Staff members should be advised that comments about students they teach will be deemed inappropriate. The institution may wish to highlight the need for staff members to adopt heightened privacy settings whilst detailing the institution’s views on matters such as ‘retweets’ and ‘liking’ third party comments, which could be conceived as inappropriate. Staff profiles should not be visible to students, especially when dealing with younger students, and any comments on public forums should be made with caution.
Students and the parents of younger students should be made aware of the likely punishments for breaches - dealing with social media abuse internally via staff or student disciplinaries is a pragmatic approach that can help reduce costs. Incorporating social media awareness into the curriculum is a good way to highlight the pitfalls of misuse and avoid future incidents.
Policies both for students and staff need to be administered consistently and reviewed periodically to ascertain whether they are effective.
The law is catching up with technological advances and issues raised by social media, and inroads are being made into curtailing online abuse. Combating cyberbullies and trolls can sometimes be expensive, particularly if the perpetrator is a sophisticated operator. However, it is in an institution’s best interests to have an effective social media policy in place and protect their staff and students from potential online abuse.
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.