OUT-LAW ANALYSIS 10 min. read
03 Apr 2020, 9:57 am
Universities, colleagues and other higher education (HE) providers should develop a code of conduct to account for the risks to student wellbeing that arise from moving to an online delivery model during the coronavirus crisis.
HE providers have a duty of care to their students which is not diluted by the current circumstances of the pandemic. Guidance has been produced which can help HE providers meet their legal obligations while they help students achieve their academic ambitions using digital technology.
It is likely that the social distancing directions in the UK, required to stem the Covid-19 pandemic, will bite for many weeks, if not months, to come. Schools, colleges and HE providers are therefore working hard to assure their students that the need to cease traditional face-to-face teaching is not a closure.
Many institutions have shown great ingenuity and flexibility in rising to this challenge at extremely short notice. It is a testament to this hard work that the majority of students in the UK are continuing to receive teaching and learning opportunities through a variety of different online mediums including Zoom, Moodle, Skype and Panopto.
In most cases this work pre-empted the recent request from Michelle Donelan, the higher education minister in England, who on 20 March said that online provision be made as widespread as possible in the coming summer term.
However, providers who are moving to an all online model of delivery need to be mindful that for many students this may increase their sense of isolation and anxiety. It might also create additional risks of harm to those students if they do not have sufficient mechanisms in place to support their wellbeing and protect them from online abuse and harassment.
Based on recent statistics, it is arguable that the latest generation of student, age adults are "digital natives".
They are the first generation for whom the use of smartphones and social media has been common place and part of the culture into which they have grown up. An Ofcom report in 2016 revealed that social media has a near-universal reach among 16-24 year olds in the UK, and that 99% of respondents claim to use it at least weekly.
However, as a result of the present crisis there is increasing evidence that such a bald statistical approach to the present generation of students is extremely misplaced both in terms of their perceived technical capabilities, never mind their assumed knowledge of social media and other risks.
In fact the move to online delivery has left many students exposed. Students who no longer can access computer rooms on campus are now seeking support from their institutions and student unions due to lack of access to appropriate hardware – we understand many students are accessing loan laptops from their institutions – and other facilities including a broadband connections, and software upgrades to run applications required to access teaching.
Julian Sladdin
Partner
There is presently no formal statutory duty that specifically states that higher education providers are responsible for the safeguarding of all their students – given those students are adults – but there is a contractual obligation and a general duty of care toward them exists in common law too.
This error in assuming a level of capability is sadly consistent with similar beliefs that students who have had increasing access to digital content through school and adolescence are educated as "digital natives". This term suggests that these students are well versed in spotting and mitigating the legal and safeguarding risks posed by that wider digital access. In reality, the assumption is misplaced, resulting in insufficient mechanisms being in place to tackle not only the risks of online harassment but also the protection of the wellbeing of students while accessing a provider's services.
There is presently no formal statutory duty that specifically states that higher education providers are responsible for the safeguarding of all their students – given those students are adults – but there is a contractual obligation and a general duty of care toward them exists in common law too.
The extent of the duty to protect a student's wellbeing and mental health has not been tested in the courts. Whether a duty of care exists, or has been breached, will be fact sensitive.
In England and Wales the courts have applied a three stage test to establish whether a legal duty of care exists. The test is as follows:
In the event that a provider fails to meet its duty to its students there is a significant risk of a successful claim for damages arising out of that provider's negligence.
The common law duty of care covers access to online services and this is reflected in digital policy, most notably with the recent online harms white paper, particularly related to the provision of an online service or content.
While the institutional-student contract legally limits any duty to the provision of the agreed education and support services, providers also need to be aware that there is a risk in providing further services – such as digital platforms. This risk arises if in providing those further services they fail to ensure that those facilities are monitored, which would potentially expose students to online behaviours or material which might negatively impact upon their mental health. Such an oversight may result in it being held in breach of its duty of care.
In cases where a student becomes the subject of abuse, or is at risk of abuse, within an online environment provided by their higher education provider, the institution needs to be able to demonstrate due diligence. This might involved, for example, using well-defined 'acceptable usage' policies, and implementing appropriate monitoring approaches and effective staff training to recognise and support those students at risk. The provider also needs to be aware of the potential impact of online abuse and how they might support students whose wellbeing has been affected as a result.
It should also be remembered that conduct classed as harassment is a breach of criminal law. The provider will be advised to direct the reporting student to report the matter to the police or pursue an action under the Protection from Harassment Act 1997.
The provider will also have parallel powers under its own internal procedures to consider disciplinary action and precautionary measures pending the outcome of any formal process. These can be used to avoid circumstances where the alleged harassment is allowed to continue or where a reporting student is expected to have contact with the responding student pending an investigation. It may be an actionable breach of duty on the part of the university if it adversely impacts on the reporting student’s safety, wellbeing or mental health.
The extent of the duty placed on a provider in respect of a student may be increased where that student is regarded as a vulnerable person. This could be as a result of the student being under 18, and regarded as a minor, or having mental or physical disabilities.
The explosion in general digital use in recent years has highlighted the significantly increased risks which students face from individuals who seek to use online networks to perpetrate acts of harassment. In a study by the charity Ditch the Label, one in two young people stated that they had been bullied online before the age of 25. Furthermore, between 2017 and 2019, the number of people who stated that they have experienced online harassment overall jumped from 17% to 30%.
As the present mitigations to address social distancing and the spread of Covid -19 in the UK mean that all educational institutions will have no option but to increase online delivery over at least the summer term, including a move to online assessments instead of traditional examinations, there is an urgent and critical need for providers within the HE sector to consider their legal duties to any staff and students taking part in any online activities sponsored or sanctioned by them.
In particular, misuse of social media and other online platforms can leave students exposed to abuse. This can affect their mental health and wellbeing. It can also risk disrupting their education and potentially impact on their future employability and career prospects. To tackle online harassment and cyberbullying, all institutions need to consider the specific threats as part of their duty of care to all students as part of a wider strategy to tackle violence, harassment and hate crime on campus.
As part of that process HE providers need to set clear online conduct guidelines for both students and staff. This includes making reference to online harassment in disciplinary policies and procedures and their student code of conduct.
In particular, both students and staff need to clearly understand the boundaries of acceptable use and the likely ramifications that over-stepping those boundaries could have on other staff and students. Students who face such conduct also need to know that they will be appropriately safeguarded should they face such behaviours online, including harassment, hate speech and the sharing of harmful or illegal content.
Recent comments from internet safety experts say less than a quarter of UK universities have adequate procedures to deal with harmful or illegal online behaviour by students and staff, including the possession and sharing of child abuse images.
In this context universities are already in receipt of a number of pieces of guidance which are directly relevant to the risk of harassment against staff and students.
The November 2016 Universities UK (UUK) 'Changing the Culture' report considered how universities tackle serious cases of misconduct including sexual violence, harassment, hate crime and gender-based violence. This report was followed by guidance on how to handle student misconduct which may also constitute a criminal offence. Pinsent Masons assisted in preparing that guidance, which set out the overarching principles for addressing misconduct allegations at HE institutions, but did not specifically address the online setting.
To promote good practice across the sector, UUK subsequently extended its 'Changing the Culture' project to highlight the need for a similar zero-tolerance approach to online harassment, in its September 2019 publication, Changing the Culture: Tackling online harassment and promoting online welfare. That report recommends that staff receive specialist training from internet safety experts or the police, and that providers work with and support victims of online harassment.
The report distinguishes “online harassment” from “cyberbullying,” which is defined in UK law as inappropriate behaviour online that could constitute a criminal offence. It follows research by professor Emma Bond, University of Suffolk’s director of research, and Katie Tyrell, research associate at the University, into the issues.
The acts of online harassment listed in UUK’s 2019 report include cyberstalking, doxxing, trolling and sexting. However, it acknowledges that there could be overlaps with cyberbullying and that as technology and social media evolves, more forms would emerge.
The report indicates that providers must better engage with the issue and raise awareness of how to report and better support students, as posting intimate images of non-consenting others along with identifying information leads not only to humiliation and embarrassment but could also increase the potential for further online and offline harassment.
To help HE providers deal with these, UUK makes the following recommendations:
The University of Suffolk’s higher education online safeguarding self-review tool is highlighted as a good practice example others could follow. Created by professor Bond, this tool is a checklist on policies and practices and is free for any institution to use.
The UUK guidance also has strong government support. A Department for Education spokesperson has said: "Online harassment is unacceptable in any circumstance and can have a devastating impact on the victims. We expect universities to follow this guidance and put robust policies and procedures in place, including effective disciplinary processes and ensure that victims are supported."
Finally, although, now suspended due to the present Covid-19 restrictions, the Office for Students (OfS) consultation on setting potential expectations for the handling of sexual misconduct and harassment issues in the HE sector is also worth reflecting on. While this consultation is not specifically focused on online use, and in many ways is simply confirming the principles already enshrined in the UUK guides, it does gives a very good indication as to what steps the regulator expects all providers to be doing both now and in the future.
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