Out-Law Analysis 5 min. read
13 Nov 2020, 8:03 am
This is part of a series of articles on online risk in the higher education sector, which also looks at how to deal with online harassment from an HR perspective and what disclosures under freedom of information laws tells us about how providers are addressing online safeguarding.
The 'evacuation' will be underpinned by reversion to online teaching and assessment and will re-open previous concerns about the impact of digital learning delivery on the wellbeing of an already beleaguered student body.
These concerns underline the urgent need for higher education providers to review their internal processes for ensuring that students who are accessing virtual learning services and to create confidence that those procedures have sufficient force and integrity to safeguard students against online harms.
Our experience is that despite many examples of good practice the higher education sector is still at a very early stage of its journey in tackling the risks of online harassment, but useful guidance is available to help providers and a range of actions possible.
The move to a predominantly online model for delivery of teaching and learning has raised questions about its impact on student wellbeing.
Feelings of isolation and anxiety among students are risks that need to be guarded against in the context of virtual learning where there is limited or no face-to-face interaction. There are additional risks of harm to those students if providers do not have sufficient mechanisms in place to support their wellbeing and protect them from online abuse and harassment.
Higher education providers must not assume that students are well versed in spotting and mitigating the legal and safeguarding risks posed by digital access
Issues of online risk were highlighted by Universities UK (UUK), the government and the Office for Students (OfS) before the pandemic, but need to be given even greater focus now as universities adjust to a 'new normal' where digital delivery plays a bigger role in their offering to students.
While students may have grown up in a connected 'smartphone' society – a 2020 Ofcom study confirmed that 95% of 16-24 year olds have social media profiles – higher education providers must not assume that students are well versed in spotting and mitigating the legal and safeguarding risks posed by digital access.
Higher education providers must be more proactive in educating their students about the risks of digital media. This needs to be underpinned by clear online conduct guidelines for both students and staff and enforced by making online harassment a disciplinary offence. The conduct requirements and statements of policy must be robust and subject to procedures that are enforced when appropriate.
Higher education providers are responsible for the safeguarding of students under contract and a general duty of care in common law.
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.
If providers fail to meet their duties to their students they are at a significant risk of a successful claim for damages.
The common law duty of care covers the provision of an online service or content. This is reflected in emerging UK government digital policy, most notably its online harms white paper.
There is a risk that, if learning and support services are provided on digital platforms and not adequately monitored, students could be exposed to behaviours or material which might negatively impact upon their mental health. This could result in providers being held in breach of their duty of care. Suitable protections could include due diligence, for example through the use of well-defined 'Acceptable Usage' policies, appropriate monitoring approaches and effective staff training to recognise and support those students at risk or whose wellbeing has been affected by harassment.
Harassment is a criminal offence and so providers should train staff to signpost students towards reporting cases to the police or their rights under the Protection from Harassment Act 1997.
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 over the last few years has highlighted the significantly increased risks of people using online networks to perpetrate acts of bullying, harassment or hate crime. The recent Law Commission consultation paper 'Harmful Online Communications: The Criminal Offences' highlights the fact that even legislators have struggled to keep a pace with developments and that even protections under the criminal law are now in need of urgent reform.
Misuse of social media and other online platforms can leave students exposed to abuse. This can affect their mental health and wellbeing. In the case of students it can also risk disrupting their education and potentially impact on their future employability and career prospects.
Higher education providers have parallel obligations to the criminal law under their own internal procedures. These include setting clear online conduct guidelines for both students and staff. This includes explaining the boundaries of acceptable use, the likely ramifications of over-stepping those boundaries and ensuring that online harassment is covered in disciplinary procedures and codes of conduct.
Various sets of guidance have already been prepared to help higher education providers address the risk of harassment against students.
The guidance chimes with the proposed updates to the regulatory framework for the higher education sector around acceptable behaviours and student safeguarding
The November 2016 Universities UK (UUK) 'Changing the Culture' report considered how providers tackle serious cases of misconduct including sexual violence, harassment, hate crime and gender-based violence. This report was followed by guidance for higher education institutions on how to handle student misconduct which may also constitute a criminal offence, which Pinsent Masons assisted in the preparation of, which set out the overarching principles for addressing misconduct allegations, but did not specifically address the on-line setting.
UUK extended its 'Changing the Culture' project to to highlight the need for a similar zero-tolerance approach to online harassment with its September 2019 paper Changing the Culture: tackling online harassment and promoting online welfare. That paper recommends that staff receive specialist training from internet safety experts or the police, and that providers work with and better support victims of online harassment.
To help higher education providers deal with these, UUK makes the following recommendations:
The UUK guidance has strong government support and all providers of higher education are expected to follow this guidance. Its importance has increased as changes to course delivery brought about by Covid-19, such as the use of blended face-to-face and online teaching and learning, are likely to remain post-pandemic.
The guidance also chimes with the proposed updates to the regulatory framework for the higher education sector around acceptable behaviours and student safeguarding.
Although, suspended for a period due to Covid-19 restrictions and not specifically referencing online risk, the Office for Students (OfS) consultation on setting potential expectations for the handling of misconduct and harassment, confirms the core principles already enshrined in the UUK guidance and the steps the regulator expects all providers to be doing both now and in the future to meet good practice and registration conditions.
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