Since the pandemic began, it’s been an inescapable reality that school and college leaders have been (and still are) facing multiple challenges. They've had to cope with huge changes including making their premises 'Covid safe', juggling online teaching whilst remaining open for the children of key workers, introducing lateral flow testing and managing the wellbeing of staff, pupils and parents. Everyone in the education sector is feeling the strain.
The advent of online learning has given parents the opportunity to send highly critical messages and 'advice' directly to teachers and to share these on social media and other platforms. These are often misleading or completely false and cause real upset to staff and leaders who are doing their best to teach pupils.
We've seen an increasing number of queries from school/college leaders who want to know what their options are when faced with this damaging material, whether published by parents, students or other third parties.
The legal position
Although potentially damaging, not all negative statements made about a school or college are defamatory. In order for a statement to be considered defamatory, it must:
- Be in writing and published to a third party (such as Twitter or FaceBook) and
- Lower the subject in the estimation of right-thinking members of society (in other words, would a reasonable person reading the review think less of the subject because of it?)
A published statement will not be defamatory unless the subject can demonstrate as a fact that it has suffered or is likely to suffer serious harm because of it. This means that published statements which may be offensive, hurtful or embarrassing, but don't cause serious harm, are not legally actionable.
Plus, there are a number of defences to a defamation claim set out in the Defamation Act 2013. Most relevant are the defences of:
- Truth: There is a legal presumption that defamatory words are false, so the evidential burden is on person who made the statement (the "publisher") to prove truth, rather than on the school or college to prove otherwise.
- Honest opinion: The publisher must show that the statement is one of opinion as opposed to fact; the statement indicates the basis of the opinion; and the opinion is one that an honest person could have held on the basis of any fact which existed at the time of publication.
- Public interest: The publisher must show that the statements complained of were made regarding a matter which is of public interest. The publisher must have reasonably believed that publishing the comments were in the public interest.
It’s important to note that institutions of central or local government do not have the right to sue for defamation. Schools/colleges which are government funded will fall in this category, whilst private schools and some academies will not. However, no matter the type of school/college, if a defamatory comment refers to an individual member, officer or employee of a school (such as a teacher, head or governor) then they are able to bring a defamation claim personally.
What are your options?
Even if a published statement does meet the threshold of being defamatory, litigation shouldn’t be your first consideration. Not only will it be costly and time consuming, it can often make a bad situation worse by inflaming the publisher and making them more vocal against the school/college.
Your main priority will be to contain the publication and limit the potential harm done. One approach is to remind parents and students what is and isn't acceptable behaviour, ask them to remove the post and remind them where they can access your policies.
It might also be helpful to explain what steps you have taken regarding the provision of education during the pandemic and why you have taken a particular approach (especially, if this has been criticised or is likely to be controversial). This can often deter other individuals from jumping on the band wagon and keeping the story running by commenting on it or sharing it.
If this doesn't work, it may be necessary to take legal action against the publisher. The first step would be to prepare a legal letter which sets out why the comment is defamatory, what the true position is and then invite the publisher to remove the published statement in order to avoid any further action being taken against them. This could be a light touch 'warning' letter or a full pre-action letter of claim. More often than not, instructing a solicitor to prepare such a letter can help to resolve matters quickly as it shows the publisher that you are taking the issue seriously. Most parents/ students would rein it in at this stage.
Should the matter still not be resolved, legal proceedings in the High Court may be necessary. This is an unattractive prospect for any publisher: if they fail to discharge their burden of successfully arguing their defence to the claim, they face being ordered to pay damages to compensate you.
How can we help?
This article was written by Amy Au and Jasmine Fearnley.
Irwin Mitchell’s reputation management team are highly specialised and experienced in resolving these sorts of disputes. We've worked with a number of schools and colleges in relation to their reputation management issues and appreciate how sensitive these matters can be. We will always work with you to devise the best strategy to help you resolve the dispute in the most cost effective way.
Please contact Amy Au for more information.