Having a pop at independent schools seems to be very much in vogue for the mainstream media at present. Combined with the ease with which any member of the public can now post comments on social media and online, managing your reputation is becoming an increasingly onerous task in the sector.
It is now almost expected that an internet forum will feature gratuitous abuse from an online “troll” and, understandably, resolving these issues gets more complicated when the damage is caused by someone who has hidden their identity.
If your school is unlucky enough to be targeted, rest assured that you are not alone. The very nature of these issues means that it is rare for others to share their experience: a happy outcome when a school’s reputation is at stake is normally one which does not draw outside attention and often includes reciprocal obligations of confidentiality.
While there is no way of avoiding potential exposure, the aim of this article is to increase schools’ awareness of the issues, to facilitate forward planning and to help minimise the risk of reputational damage, disruption and cost.
A wide range of disputes and regulatory issues will involve a need for reputation management at the same time. For example:
We are frequently asked to advise on claims relating to comments made by disgruntled staff, pupils (current and former) and/or parents whether verbally, in writing or in the media.
Sometimes these will relate to offensive comments about the school – for instance, on social media or online review sites; on other occasions the comments may relate to staff, other pupils or third parties, with the school potentially being on the hook as the comments were made in a school-related publication, such as on a webpage or forum allowing user-generated content. In these instances, swift action on first becoming aware of an issue can avoid liability altogether.
Defamatory statements also come up in press coverage – such as in relation to the current spate of historic abuse allegations. Dealing with press queries can be a minefield of data protection/confidentiality issues and are often required under considerable time pressure.
Data protection and confidentiality breaches
Caution needs to be taken when communicating with third parties in relation to anything to do with pupil, parent or staff data. The problems are not limited to accidental disclosure by schools. Issues can include pupils making disclosures about other pupils (or staff); parents getting hold of and misusing confidential information including mailing lists; and dealing with/clarifying misleading statements made by a pupil in university applications.
Intellectual property and cyber-squatting
Given the huge brand value associated with independent schools, it is no surprise that schools can be targeted by infringers. In a recent instance, a client found prospective parents being drawn to a rogue site which had been registered with an identical domain name, save that “Grammar” had been spelt “Grammer”: clearly a common misspelling and an opportunity seized upon by the infringer.
If a school’s reputation is being called into question, it may also be the case that staff or pupils are being harassed. This can open up the possibility of criminal proceedings, as well as civil action under the Protection from Harassment Act 1998 – although the police will not be able to secure a prosecution if the offender has hidden their identity, as has been the case in several high-profile cases involving harassment through the likes of Facebook, and may not be willing to expend sometimes considerable resources in tracing the perpetrator.
Incidents of this nature usually involve a balancing act. Regardless of technical legal arguments or indeed the accuracy of any rumours, many are concerned by the risk posed by a “no smoke without fire” mentality and, with this in mind, we encourage quick action to limit the impact discretely.
An early assessment should be made as to whether the statement(s) or behaviour complained of would be better dealt with by the relevant prosecuting authorities as a criminal matter. The driving factor will generally be the remedy sought: for instance, action by the police is unlikely to result in a defamatory webpage being taken down within a short period of time, but given that police involvement is likely to involve significantly less cost, budget is also an important consideration here. On some occasions, prosecution resources are not available to pursue the matter: particularly where the offender’s identity is hidden.
Typically, civil action will have three elements:
- Stopping the ongoing issue: assuming the concerns extend beyond addressable IT solutions, this can range from demands to remove material or cease actions through to urgent injunctive applications in the courts. Traction can often be gained more easily through a third party host than the author of actionable material and this can be as simple as using a social media provider’s ‘report abuse’ function, which should not be overlooked. The location of the other party, however, is likely to have a significant impact on their response. Hosts in the US tend to be more defensive of freedom of speech than Europeans, given that the concept has been part of their Constitution since the First Amendment in 1791.
- Identifying authors: cyber-attackers and internet trolls will generally have hidden their identity. Various practical and/or legal techniques can be deployed to seek to uncover the identity, depending on their level of sophistication. Often looking at online footprints, such as reverse ISP lookups or internet searches for previous uses of usernames, can be helpful. In one instance, I uncovered the identity of a serious harasser through his having used the same username on a dating site years before, where his photograph and location remained freely available online.
- Considering a claim: if the problem has been stopped, careful consideration should be given to what pursuing a claim will achieve. Will the defendant have the resources to even reimburse the costs of such a claim, let alone damages? Will an action simply draw greater attention to the comments or behaviour complained of? Clearly these factors need to be balanced with wider considerations.
- Don’t panic! Do not be pressured into making a statement on the spot or feeling the need to give a detailed response to enquiries, whoever may make them. Statements to the press are generally bland for good reasons. If the incident is serious enough to result in legal proceedings, your initial response may impact upon those.
- Don’t ignore the problem: clamping down on offensive material is likely to limit the risk of it being duplicated. As soon as you become aware of a potential issue, consider putting together a draft response/press statement. If the incident attracts wider attention, you will not be given much time to respond. If you are hosting user-generated content which is causing offence to a third party, taking prompt action can avoid liability altogether.
- Ensure your relevant policies and agreements are up to date to reflect use of social media. This would typically include the school’s parent contract, codes of conduct (for both pupils and staff) and staff employment contracts. Regularly remind pupils and employees of their content to emphasise that they are and must be taken seriously.
- Be aware of any obligation to report incidents (and the timing of such reports) to governors, insurers or, if your school is a charity, to the commission.
- When liaising with a third party host of online content, “speak their language” and refer to their own terms. This is particularly helpful when dealing with hosts outside of the jurisdiction.
Ben Holt is a partner at leading education law firm Veale Wasbrough Vizards T: 0117 314 5478 E: firstname.lastname@example.org