Out-Law Analysis 5 min. read
27 Nov 2020, 10:49 am
By Andy Phippen, professor of digital rights at the University of Bournemouth, and Emma Bond, director of research and head of graduate school at the University of Suffolk. This article is part of a series looking at online risk in the higher education sector, including how to deal with the risk of online harassment from an HR perspective.
According to the responses we received, there was little training of staff, few institutions had clear reporting routes, and even fewer had a means of recording complaints to understand the scale of online abuse among their student population. Furthermore, while many claimed that they addressed online abuse in their policies, upon closer inspection they did not.
We are beginning to see a growing expectation of university responsibility for student welfare
Of the 266 policies we received from HEIs, over 60% did not even have the word "online" within them. When we explored the dearth of knowledge around online safeguarding for students in the sector we were frequently met with the same response – this is not a priority for our institution. Indeed, one institution stated in response to our request that, given all students are adults, safeguarding is not their concern.
While the press coverage of high profile cases has certainly raised more public interest in whether universities are supporting students who are harassed online, there is still much debate around whether this is even something that universities should be concerned about. The argument against this has a number of common elements:
We know from our work, however, that universities are certainly not oases from online abuse, and abuse occurs from that existing below a legal threshold, such as online pestering and "banter" that goes too far, to the criminal such as image-based abuse and harassment. Students are certainly victims of abuse, and impacts can be long term, with students disclosing they have withdrawn from the university experience for fear of further abuse, isolation, and severe mental health impacts.
We are beginning to see a growing expectation of university responsibility for student welfare, such as the letter from the then higher education minister Sam Gymiah, and the now postponed Office for Students inquiry into student harassment and abuse. Clearly there are growing calls for HEIs to become more aware of and responsive to student abuse and better supportive of victims.
Nevertheless, perhaps the most significant recent change in attitude to online harassment and abuse has been the lockdown of campus as a result of Covid-19, and the subsequent sudden move to online delivery and the remoteness of the student experience. And alongside this swift, and admirable, change in approach by the sector, the visibility of online abuse becomes more pronounced.
High profile reporting on the more extreme end of abuse, such as the in-class "Zoombombing" of extreme pornography and racial abuse, has focussed thinking around the need to safeguard students from online harm, with the NUS calling for all universities to have effective policy and practice, and clear disciplinary routes, to tackle online abuse and harassment.
While the more extreme examples, such as Zoombombing, turn into media stories, the reality is that most of these incidents can be dealt with through effective access control and conferencing software that is up to date with security fixes – basic cybersecurity practices. Abuse on these platforms is less easy to control, but can be tackled through clear policy and disciplinary routes. As with most forms of online abuse, the fact that commentary appears on screen means there is ample opportunity to evidence abuse and make use of it in disciplinary hearings.
However, this is very much the tip of the iceberg in coming to terms with what large scale online delivery does to student welfare, and more broadly, their rights.
For example, we were recently made aware of a member of the academic community who, excited to see their class on screen, decided to take a screen grab of each member of the group, which was shared further. While this was done for all of the best intentions, we need to bear in mind that students have not consented to their images being shared, and the image capture might contain personal items or details that could result in abuse
The recording of a class is important as a means to evidence abuse that might occur, but also to protect the member of staff from vexatious accusation of inappropriate behaviour
While we moved swiftly to online delivery, and learning what works most effectively, sometimes the thrill of the technology can make us neglect fundamental safeguarding principles. While it is perhaps a novelty to see all of our students' faces on the screen, we need to be mindful that, in contrast to a face-to-face classroom scenario, students will be in private spaces and that privacy should be respected. While it is in the gift of the student to switch off their camera, we should reflect upon whether there is any necessity to expose students' privacy in this way with online delivery in the first place.
We would also strongly advocate the consensual recording of classes, alongside clear policy around data retention and safeguarding rationale. Clearly the recording of a class is important as a means to evidence abuse that might occur, but also to protect the member of staff from vexatious accusation of inappropriate behaviour. This is particularly important for smaller, or one-to-one, meetings with students. Moreover, it is important that we recognise that while online delivery changes how we might interact with students, it does not change the fundamental relationship with them in terms of ensuring a safe environment to study, clear routes for disclosure should an incident occur, and transparent and consistent disciplinary routes when dealing with abusers.
There is support available to HEIs to help them implement more effective online safeguarding. Last year we published a toolkit for universities to allow them to review their current policy and practice, and how they might develop effective strategies for online safeguarding.
A term that is becoming increasingly de rigueur in the online safeguarding world is 'duty of care'. It features throughout the UK government's online harms white paper and there is much discussion, without underpinning case law, what this duty of care might look like in the higher education sector.
For example, one might argue that abuse during an online class, using a platform provided by the institution, means that the university is liable or negligent. However, we feel this would be an unreasonable position to take, and we would argue instead that demonstrating duty of care is concerned more with having effective policies in place, supported by disclosure routes and well trained and responsive staff.
As has been apparent for a very long time in the online safeguarding world, it is impossible to prevent all forms of online abuse from occurring, and this is especially true in a live setting such as an online class – an institution does not make people "safe" from online abuse. However, an institution can mitigate the risks and provide sufficient infrastructure and practice to support individuals in becoming resilient and being able to find support and resolution, with appropriate sanctions to the abuser, should they become subject to abuse.
However, our work has highlighted that this is currently a sector in reactive mode. While the move to online delivery has focussed the minds of some regarding online safeguarding, and it is clearly now on the radar of senior management, there is still much to do to ensure we do have a sector that can demonstrate its due diligence and strongly evidence it takes its duty of care seriously.