The Use and Misuse of Social Media in Schools

In this Education Quarterly Law Update, Lisa Sturgeon, Associate Director with Napier Solicitors, discusses how the use (and misuse) of social media has become an increasing problem for both Principals and their staff alike to deal with.  This article considers five issues:

1. The use of social media in a school setting;
2. The use of social media by teachers both in a professional and personal capacity;
3. The use of social media by parents of pupils who use social media to criticise schools or teachers – what is acceptable, what crosses the line and what right of redress does a school have;
4. What legal action a School/Board of Governors can take against a parent who abuses a teacher/member of staff on social media;
5. What legal actions, if any, staff members, subjected to abuse on social media sites, might bring against a school/Board of Governors.

The education sector should not underestimate the challenges presented by social media. The use of social media, and its impact on school life, has become an increasing problem for both Principals and their staff alike to deal with.  

In a recent case, HL v Facebook [2015] NIQB 61, Facebook argued that it was not feasible to control entry to its network.  This was an assertion of great significance and it elicited a notable and colourful response from the Judge, McCloskey J, who stated: “The essence of this defence consists of an admission by Facebook that it has created something of a monster.”  The challenge for the education sector is how to tame the monster!

Statistics

At the outset, it is worth pointing out a few statistics relating to social media usage:

• Facebook has over 2.32 billion users (as at 31^st December 2018) and continues to grow by millions everyday - an increase of 9% year over year.
• Twitter has over 321 million active users and is still increasing.
• LinkedIN has over 610 million users.
• The website social bakers.com states: “Currently, there are 31,145,600 Facebook Monthly Active Users (MAU) in the UK, which makes it no.7 in the in the ranking of all Facebook statistics by country. The “penetration of population” is 49.95%.
• In relation to Ireland, which makes it to no.63 in the ranking of all Facebook statistics by County, the “penetration of population” is 49.92%.

The First Facebook Injunction in Northern Ireland

In Northern Ireland, the first application for an injunction against the social network Facebook was in the 2011 case of D v Q and Facebook Ireland Limited (unrep). The evidence of the Plaintiff in D v Q can be summarised as follows:

On an evening in July 2011, the Plaintiff was out socialising and became drunk. The Defendant came to her house to see their daughter. The Plaintiff thereafter had sexual intercourse with the Defendant. The next day, the Defendant sent the Plaintiff a text message to her mobile phone stating that he had recorded them having sex.  The Plaintiff at no stage consented to the video being made.  The Defendant then informed the Plaintiff that the video was 17 minutes long and that he was going to show it to her employer.  He further stated that he would sit outside the school where she worked and send the video to a Social Networking site, Facebook, which would mean anyone would view it.  The Plaintiff’s case was that the threats were extremely serious which could have serious implications for her career and her personal reputation.

Facebook wasn’t officially named in the initial proceedings in this case. It was only just before the case started that Facebook was suggested as an additional Defendant and an application to pursue the case against the social network itself.  The application was based on the argument that, if the first named Defendant placed the video on Facebook, it would probably take time for the administrators to pick up on it and, within that time, all material could go viral.

In the end, Mr Q refused to provide his mobile phone and explained that he had made a video but just of the Plaintiff’s house, and not a sex video. He conceded he had misled the Plaintiff and the case settled.

The media took a keen interest in the litigation. It was reported that Facebook’s Counsel set out the difficulties in complying with the order.  He said that “the social networking giant dealt with 750 million accounts worldwide and claimed it was impossible to monitor without more information on the specific one at the centre of the case. Ultimately, Facebook’s position is that it has done nothing wrong because of not, as far as it is aware, hosting any information in breach of the order.” Now 8 years on, that argument is coming under intense scrutiny.

This article considers five issues:

1. The use of social media in a school setting;
2. The use of social media by teachers both in a professional and personal capacity;
3. The use of social media by parents of pupils who use social media to criticise schools or teachers – what is acceptable, what crosses the line and what right of redress does a school have;
4. What legal action a School/Board of Governors can take against a parent who abuses a teacher/member of staff on social media;
5. What legal actions, if any, staff members, subjected to abuse on social media sites, might bring against a school/Board of Governors.

(1) Use of Social Media by schools

Undoubtedly, social networking can be an educational tool.  It can be useful for collaborative planning, sharing resources, providing news and updates to parents and pupils, helping with homework and project assignments, promoting school and class achievement, recording and archiving lesson content for revision and keeping up to date with the latest pedagogy.

If a school is using social media, it should set up an official account either in the name of the school or in the name of staff, but always transparently associated with the school – effectively defining and delimiting the usage as professional and entirely school related. The key to making sure you use social media safely is to follow the guidelines set by C2K services for schools. While much of the following is common sense, it is worth setting out basic safety precautions:

1. Be professional if posting in the school’s name.
2. Don’t post anything inappropriate, including photos or comments which embarrass the school.
3. Keep all school-related conversations focused on the school.
4. Remember that there is potential for anything you post online to be copied or distributed - bear this in mind every time you post.
5. Check that you are able to delete the content once you have posted it.  Consider your digital footprint.
6. Always ensure you own the right to your content – it is unprofessional to post someone else’s work.

(2) Use of Social Media by teachers

Teachers in their 20’s and early 30’s are part of the “Facebook generation”.  For most, if not all, social media will be second nature.  Indeed, many teachers of all ages will have their own social media accounts (Twitter/Facebook).  However, for the protection of themselves and their schools, all teachers should be vigilant to ensure that activity on social networking sites doesn’t bring the school into disrepute, doesn’t bring the teacher into disrepute, doesn’t expose the school to legal liability and reflects the school’s standard of behaviour and staff code of conduct.

The issues can be illustrated by the following statistics:

• Of the GTCE disciplinary cases heard in England in 2015 and which dealt with inappropriate relationships between pupils and teachers, one in ten were begun via social networking websites.
• That same year, 43 cases involved unprofessional conduct with Twitter and Facebook being cited as evidence.

Put simply, using a personal networking profile for professional contact with pupil and parents creates a risk for teachers regardless of how professional or well-meaning the motive might be.

If a pupil sends you a message, via social media, clear advice would be not to respond or engage. Respond to it in real life NOT through the internet.  Also, avoid interacting with, initiating contact with, or “friending” current pupils using your professional profile.

(3) Use of Social Media by parents to complain about a school/teachers

That “social media is the new school gate” is a commonly used phrase.  Parents use social media sites to bypass official complaints procedures and take to social networking sites to criticise and, in some cases, make malicious comments about individual members of staff.  Parents and members of the public are entitled to hold opinions about a school, many of which will be positive, some of which might not be so pleasant.  Expressing these views is not always illegal and it’s important to remember that it isn’t possible to prevent people posting comments online.  Unless comments make a credible threat towards someone’s safety (such as death threats or other specific threats of violence towards staff or children), name a teacher who is subject to an allegation, contain hate content or could be considered as harassment, social media sites will not remove the postings.

The best approach to dealing with a parent, who complains on social media about a school/teacher’s actions, is to try and resolve the issue amicably between both parties, if possible.

Key steps to consider taking are as follows:

1. Teachers /staff who are the subject of postings: gather evidence e.g. screenshots, print-outs, etc to establish exactly what has been posted.

If comments have been made on Facebook, parents may have set up a closed/secret group to discuss or criticise members of staff.  On a public Facebook page, comments will always be public.  In a closed group, comments will only be visible to group members.

In some cases, parents may post comments on their own Facebook profiles. The visibility of these comments will depend on the individual parent’s privacy settings. If a comment is public, it will be visible to anyone who has access to the internet.  Other privacy settings may include “friends only” or “friends of friends”.

2. Principals and/Boards of Governors should ensure that they support staff – be mindful of your duty of care to staff and offer the appropriate support.  As a Principal/Board of Governor, explain how you intend to address concerns and offer support to them.
3. Invite the parent in for meeting – in most cases, this might resolve a matter very speedily.
4. Advise the parent of the school’s complaints procedure.
5. Ask a parent to remove an inappropriate posting.
6. Organise a meeting with the Chair of Governors.

If parents don’t agree to removing the offending site or posting, it may be necessary to report it to the website where it has been posted and/or report it to the police.

(4) Legal Options open to a Principal/Staff Member/Board of Governors subjected to Social Media Abuse.

Principals, staff members and Boards of Governors, in recent years, have been subjected to online abuse and criticism from parents and pupils on social media. When abuse is persistent and/or offensive and amounts to harassment, there any steps that can be taken by the victims of the abuse (i.e. the Principal, staff member or Board of Governors member.

If a Principal, staff member or Board of Governor finds themselves in a situation whereby untruths are being repeatedly posted about them by either a parent/pupil, they may potentially be able to bring High Court claims against both the perpetrator (i.e. parent/pupil) and/or the social media provider (most commonly Facebook) on the grounds of libel, misuse of private information and harassment.

Libel involves defamatory and untrue comments in a lasting form such as print, online or broadcasting. Misuse of private information is unauthorised or unjustified disclosure of private and/or confidential information.

Harassment is a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress. However, these types of claims are costly and should not be pursued lightly.

A less expensive approach, more commonly used in Northern Ireland at present, is for a teacher to fund their own action for libel in a county court. There have been several reported cases of teachers doing so in recent years.

(5) Can a staff member sue the Board of Governors/CCMS for failing to protect them from a disgruntled parent?

The burning issue for Principals, when dealing with social media abuse in schools, is how to protect its employees and avoid being sued.  Indeed, in AB Ltd v Facebook Ireland Ltd (2013) NIQB 14, a similar issue arose in respect of the duties of “AB” Ltd to its employee who was the “main” victim of the Facebook attacks.  How best can a Principal/Board of Governors support its staff who are subjected to online abuse from a disgruntled parent?

What are the potential claims an employee could bring?

1. Personal Injury Claim – Employers are under a common law duty to take reasonable care for the health and safety of employees in the workplace. This duty arises under the tort of negligence, on which personal injury claims are usually based. To succeed in their claim, an employee will have to show that:

• Their employer has breached the duty of care owed to them.
• This has caused them injury.
• An injury of that type, as a result of the breach, was reasonably foreseeable.

While there has been no reported case of a teacher suing for personal injury, over a school’s failure to protect him/her from social media, if an employer has complied with policy, provided a teacher with the appropriate level of support, offered counselling, offered time off if required and sent the appropriate letters to the social media provider, it would be very difficult for a teacher to succeed in this type of claim.

2. Breach of contract claim/constructive dismissal – it is an implied term of every employment contract that an employer will take reasonable steps to ensure the safety of its employees at work.  This includes a duty to take reasonable care not to cause psychiatric harm to an employee by reason of the working environment or the character or volume of work imposed on them.  A constructive dismissal claim could arise in such a situation if the employee alleges that the behaviour of the employer resulted in psychiatric injury as a result of the breach of the implied term of mutual trust and confidence thereby forcing the employee to resign. However, again, so long as an employer takes all reasonable steps to support an employee if the parent starts abusing a member of staff on a social media site, it is unlikely that a claim for breach of contract/constructive dismissal would succeed against a Board of Governor or employing authority.

3. Protection from Harassment claim – an employee suffering from work-related stress may consider whether they can claim under Protection from Harassment Order 1997 which prohibits anyone from pursuing a “course of conduct which amounts to harassment” and which that person knows or ought to know amounts to harassment. In Majrowski v Guys and St Thomas NHS Trust (2006), the House of Lords held that an employer can be vicariously liable for harassment, under the Protection from Harassment Order, that has been committed by an employee in the course of employment.  It would be very difficult for an employee to succeed here in a claim against its employer.  If the online campaign is not committed by an employee of the school, the Board of Governors can’t be liable.  That said, if the school failed to act or was unhelpful in supporting the employee against abuse, arguably there is scope to say that the school/Board of Governors could be found liable for third party liability.

Conclusion 

Love it or hate it, social media is here to stay. Teachers will look to the law for protection. Unfortunately, the law is no panacea and has no golden formula to right all wrongs. Indeed, the formation and shaping of the law in this area is still very much in its infancy.

A wise Judge once said “Like science, the law inches along by experiment, evidence and testing.”[1] The political uncertainty in Northern Ireland and the UK inspires me with little hope that the law is going to be reformed in this area anytime soon. However, schools are crying out for guidance in the area – and the issues addressed in this article urgently require informed or bespoke regulation from government.

I will leave you to reflect on the wise words of McCloskey J in AB Ltd v Facebook Ltd (2013) NIQB 14 6^th February 2013 (the bold is my emphasis):

“Social networking sites belong to the “wild west” of modern broadcasting, publication and communication.  They did not feature in the Leveson Inquiry and, in consequence, are not addressed in the ensuing report (for a respectable recent commentary, see the UK Human Rights Blog, a source of much valuable material and analysis).  The misuse of social networking sites and the abuse of the right to freedom of expression march together. Recent and pending litigation in Northern Ireland confirms that, in this sphere, an increasingly grave mischief confronts society.

The solution to this mischief is far from clear and lies well beyond the powers of this court. Self-regulation and/or statutory regulation may well be necessary.  In the meantime, this unmistakably pernicious evil is repeatedly manifest.  Recourse to the courts for appropriate protection and remedies is an ever-expanding phenomenon.  The courts in Northern Ireland have demonstrated their availability and willingness to protect the interests of those whose legal rights are infringed by the cowardly and faceless perpetrators of this evil.  As the present case demonstrate, the law, through the courts, penetrates the shields and masks of anonymity and concealment.  Effective remedies are available and will be granted in appropriate cases.  The courts will continue to play their part as the vehicle for the protection and vindication of legal rights and interests, were violated, in a society governed by the rule of law and belonging to a supernatural legal order in which human rights have been placed at the centre, as a result of the Lisbon Charter of Fundamental Rights, a dynamic, revolutionary and directly effective measure of EU law.”

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