Higher education must balance free speech and UK defamation laws

From the recent legal complaint by Professor Alice Sullivan that the University of Bristol failed to protect her freedom of speech at an event to the £585,000 fine levied against the University of Sussex, incidents have been increasing in instance, amid strengthening of the provisions in the Higher Education (Freedom of Speech) Act 2023 over the summer.

There are, however, legal risks associated with unfettered free speech – both in defamation and other causes of action - which may be less prominent on worry lists but can become real headaches for higher education establishments.

UK defamation laws – a refresher

Before we delve into that, however, a quick refresher on the necessary ingredients for a defamation claim.

As prescribed by common law and in the Defamation Act 2013, it occurs when:

• a clear statement has been published to a third party,
• the statement identifies or refers to the claimant,
• the natural meaning of the statement is defamatory, such that an ordinary person would think worse of the claimant as a result of the statement, and
• the statement has caused or is likely to cause serious harm to the reputation of the claimant or, in the case of a body corporate, serious financial loss.

Statements which appear defamatory at first glance may nonetheless be immune from claim if they benefit from one of the statutory and common law defences. These include truth; honest opinion; publication on a matter of public interest; peer-reviewed article on an academic or scientific matter; qualified privilege; and absolute privilege.

In addition, the limitation period for a defamation claim is one year, so any potentially defamatory statement published more than a year ago – even without the benefit of a defence – will not be susceptible to challenge in any event. This can often provide a quick solution where the claimant has been slow to issue.

How this manifests in case law

Social media

There has been an increase in reported cases involving academics given the proliferation of social media. A 2023 case, Wilson v Mendelsohn & Ors, is a cautionary tale regarding the potential for claims arising where rival academics gossip or post ill-considered content on social media.

Here, a law lecturer disclosed to a friend private information about fellow academic James Wilson’s past conduct when they were colleagues at the University of Huddersfield, relating to claims of bullying and harassment against him that were not upheld. That friend - who later died - posted about it on X, prompting Wilson to make a claim against James Mendelsohn for misuse of private information.

Mendelsohn also shared with his friend a screenshot of a Facebook post containing distinct and unsubstantiated defamatory allegations about Wilson, which was reposted by another individual, Edward Cantor.

High Court judge HH Richard Parkes KC held that the information disclosed was private and had the potential to cause real damage to Wilson’s reputation. He awarded damages of £22,500 against Mendelsohn for the disclosure and republication of the Facebook post, and £7,500 jointly against Mendelsohn and Cantor for the retweeting of the defamatory content.

The judge remarked on the “profoundly toxic potential of the ill-considered and ill-tempered use of social media” especially among “clever and principled people with strong views on politics”.

Academics on the receiving end of such toxicity may still be protected in defamation even where the posts are made anonymously by a fellow academic or student. In a 2021 case, Blackledge v Person(s) Unknown, the claimant, who was a prominent academic, was subject to false allegations of sexual misconduct which were spread amongst colleagues via anonymous online blog posts and further disseminated on X and by email.

The anonymous blogger used the #MeToo debate as part of their strategy. The judge was content for the claim to proceed in the absence of the “person(s) unknown” defendants given reasonable steps had been taken to try to identify them. Due to the gravity of the allegations and the devastating effect on the academic’s professional reputation, he was awarded £70,000 in damages, plus an injunction and an order under section 13 of the Defamation Act requiring the host of the website to remove the posts.

This was one of the first section 13 orders granted.

Disciplinary or misconduct processes

Relevant allegations about colleagues expressed in the context of legal proceedings - including pre-action - will typically benefit from the defence of qualified privilege, albeit care should always be exercised in internal communications (as to references, see below).

In Kostakopolou v University of Warwick in 2021, a law professor brought a claim for defamation and malicious falsehood against her university, colleagues and a student relating to internal communications published during disciplinary and dismissal processes.
The communications were held to be covered by the defence of qualified privilege, and the professor failed to plead or show ‘malice’, which might have defeated this. Her High Court claims were therefore struck out.

Working with ‘amateurs’

An unusual case which recently settled was Richard Taylor v Pathe Productions Ltd and others. The claimant, the former deputy registrar for the University of Leicester, sued two production companies and the actor Steve Coogan (together, ‘the defendants’) who made the 2022 film ‘The Lost King’ about the search for Richard III’s remains, centring on the role of ‘amateur’ historian Philippa Langley.

At a preliminary issues trial, HHJ Lewis found that the film depicted the claimant as (i) knowingly misrepresenting facts to the media and the public about the university’s role in finding Richard III’s remains and marginalising Langley’s role and (ii) “smug, unduly dismissive and patronising” towards Langley in relation to the project.

The defendants sought to defend the claim with the defences of truth and honest opinion, though the case settled before trial with the defendants agreeing to pay “substantial damages” and costs and to insert a clarification in the film’s pre-title sequence that the Richard Taylor in the film is fictional. While films of this kind do not come up often, the principles involved may apply to other academic discoveries where ‘amateurs’ are involved and how these are represented to the world at large in an article or other publication.

Trends in practice

Complaints about published articles

We have seen an uptick in pre-action complaints about academic articles in our practice. Section 6 of the Defamation Act acts as a complete defence to a claim in defamation where the article is on an academic or scientific matter and is peer-reviewed. Where there is a factual inaccuracy in the article that has eluded both author and editor, we are seeing a willingness to amend peer-reviewed articles in the interests of academic integrity.

Clients are rightly holding firm and asserting section 6 on matters of academic opinion, however controversial. Where the article is not peer-reviewed, section 6 is not available, even if the article is on an academic or scientific matter. In these cases, the pendulum is more delicately balanced. The academic will need to rely on the defences of truth, honest opinion and public interest defences. All of these will require a paper trail of evidence – and, for the latter two, contemporaneous due diligence – to support the academic’s statement which is complained of, with honest opinion being the most realistic avenue in most cases.

Social platform disagreements

The trend of social media-related case law reflects what we are seeing day-to-day. Academics will not be able to rely on the section 6 academic free speech protection where they post or engage in debate on social media. Any allegedly defamatory statements will need to be defended as truth, honest opinion and/or public interest.

Particular care should therefore be exercised when re-tweeting or re-posting the views or outputs of others without carrying out verification, as these constitute primary tweets / LinkedIn or other posts / publications in their own right for defamation purposes. It is no defence to say that the academic was not the original publisher.

Conferences

The same care should be taken with any statements made by academics about other academics, companies or individuals in a conference setting. Conferences should not be viewed as an opportunity to speak without filter. Controversial and so potentially defamatory statements should only be made where appropriate research has been conducted to substantiate those statements. They need not as a matter of fact be true, but they should at least be demonstrably reasonably held.

We have had one recent example of protracted pre-action correspondence between lawyers relating to comments made by an academic - with a corporate interest - about another corporate in a conference setting. The scope for serious harm is acute given the audience is likely to be made up of influential peers, so the audience does not need to be large to reach the threshold.

AI outputs

We are seeing AI as a new frontier for potential issues, most recently AI tools generating defamatory content about senior university staff based on a single – false – account on an unreliable website.

This echoes the high-profile case of Professor Jonathan Turley in the US, whom ChatGPT claimed had been accused of sexual harassment after inappropriate conduct with students on a trip to Alaska. Chat GPT cited a 2018 Washington Post article, which never existed.

This may be particularly problematic when due diligence is being conducted on the person for a professional appointment. In these circumstances, we have engaged with the AI providers to achieve more muted language in the output that indicates the single source of the allegations which does not appear reliable. Hallucinations - outputs invented by the AI tool without any attributable source - will be more readily be susceptible to take-down. In our experience, contacting website hosts and domain registers rarely seems to achieve results, as they tend to apply US law and will only take down when in receipt of a US court order.

That said, a multi-pronged approach in this developing area is appropriate to see what ‘sticks’.

References

A more classic area where we continue to see complaints arise is references provided in the context of academic recruitment, particularly unsolicited references where the referee is asked if they know of the candidate or where the referee provides feedback having heard that a candidate is on a short list. On occasion, where a candidate gets wind of a negative such reference, there may be allegations of defamation.

These complaints are typically without merit, so long as the reference is honestly given and based on verifiable facts, which a reasonable person in possession of those facts could have held. If the reference is given with an axe to grind, then there may of course be a claim, particularly if the references was accepted and this led to ‘serious harm’ in the appointment or job not being given.

Takeaway

While it remains unusual for defamation claims involving academics and universities to be successful, social media in particular has opened another frontier of activity with higher risks. Whatever the root of a claim, it can of course prove to be a huge time and cost drain while it lasts.

This reinforces the need for care in all written communications, whether internal or external. There is no such thing as ‘casual’ written correspondence any longer.