The digital revolution has led to an explosion in the use of social media by students. Social media present tremendous opportunities for educational institutions and students alike but the rapid and continued increase in its use by students has given rise to difficult challenges and legal pitfalls for institutions to navigate.
What are social media?
Social media is the term used to describe the range of online and electronic communication tools which offer individuals the opportunity to make contacts, communicate and share friends, information, opinions, views and beliefs. The most popular social media tools include Facebook, Twitter, Myspace, YouTube, LinkedIn, Snap Chat and internet blogging facilities. A number of these allow individuals to send private or public messages and, amongst other things, to join groups on almost any conceivable topic, from tongue-in-cheek clubs to societies and campaign groups.
Social media present unique opportunities for educational institutions and their students. In the academic context, social media provide opportunities for more dynamic approaches to education and new methods of delivery of educational services and student learning and offer a platform for sharing information, opinions, views and beliefs. They also provide new channels through which students can communicate with each other and with their tutors and act as tools for organising events, campaigns and protests.
What risks may arise for institutions from the use of social media by students?
It is important that students who use social media are aware that the comments and material they share and the actions they take can, depending upon their nature, have serious implications and sometimes legal consequences for themselves and for the wider institutional community.
Students may choose to use social media to post negative, disparaging, damaging or defamatory material regarding other students, staff, third parties, their course(s) or the institution generally. Social media may also be used by students to challenge social norms and progress contentious or controversial views and opinions.
The nature of social media is such that once postings have been made they can be very difficult to remove and contain and can quickly become accessible by a global audience including from outside the institution community. In addition, the misuse of social media may give rise to adverse publicity, bring an institution into disrepute and result in reputational damage. Once the Counter Terrorism and Security Bill becomes law any use of social media to foster extremism may lead to the institution being in breach of the new duty to have regard to the need to prevent people being drawn in to terrorism.
Institutions risk being exposed to successful complaints and claims where they have not taken reasonable steps to prevent inappropriate use of social media by their students. For example, the posting of inappropriate material by students can lead to complaints by other students, staff and third parties of bullying and harassment and discrimination where the material relates to one of the protected characteristics under the Equality Act 2010. Such material can also give rise to claims for defamation with potential liability for individual students and for the institution where it publishes or exercises editorial control over the content. Victims of social media misuse might additionally allege that an institution has failed to discharge a duty of care owed to them, and its obligations under health and safety legislation.
Comments and material posted on social media might also alert an institution to concerns and the need to take appropriate action in relation to general student misconduct and professional suitability.
Monitoring students’ use of social media, placing restrictions on their use and taking action against students where their actions are considered inappropriate also gives rise to important debates regarding human rights, including the application of Article 8 (right to respect for private and family life) and Article 10 (freedom of expression) of the European Convention on Human Rights. These issues have been considered in the employment tribunal and we can expect the case law in this area to develop further over the course of the next few years.
Managing the use of social media
It is increasingly important for institutions to have effective policies and procedures in place to address the challenges arising from the use of social media, including the need to define the parameters of acceptable use.
A number of institutions have developed stand alone social media policies which include appropriate references to other relevant policies and procedures (for example, student codes of conduct and disciplinary procedures, IT and data protection policies, codes of practice on freedom of speech, etc). Other institutions have updated their existing policies and procedures to address the challenges arising from social media misuse. The important point for institutions is to ensure that the parameters of acceptable behaviour are clearly defined and communicated to students and that a well drafted procedure is in place to offer an effective framework to regulate the use of social media and through which to take action where issues arise.
Well drafted policies and procedures are also effective in assisting institutions in discharging the duty of care owed to staff and students and may support institutions in discharging their legal obligations, including under equality and discrimination legislation by demonstrating their commitment to eliminating unlawful discrimination, harassment and victimisation, advancing equality of opportunity and fostering good relations between groups.
A comprehensively drafted social media policy should:
- Carefully define what is meant by ‘social media’.
- Prescribe the parameters of acceptable use of social media and define the behaviour and conduct which is considered unacceptable.
- State whether the policy applies to the use of social media for educational and personal purposes and whether it extends to use outside the institution and on students’ personal equipment.
- Outline or refer to the procedure for dealing with breaches of the policy and include appropriate cross-references to other relevant policies and procedures.