Gerard Cukier, defamation and commercial solicitor at Keystone Law

With the #GSCE and #ALevel fiasco making front page news, schools, colleges, universities and their governors are increasingly facing threats of bad publicity in relation to action that has been taken or, in some cases, not taken 

What can be done if an educational establishment or its officials are faced with allegations and the threat of bad publicity, especially if this is harmful, may cause long-term damage or is simply wrong?

What can a school, college or university or its governing body do if it is unexpectedly contacted by the media asking for its comments – often at very short notice — in relation to serious allegations that may be about to be broadcast or published?

This article will look at the law of defamation and other laws governing publication or processing of material and outline what a school, college or university or its officials can do to protect their reputation if they are faced with serious allegations.

Can schools, colleges, universities and its governors or chancellors sue for defamation?

State schools are generally regarded as akin to public bodies and are not able to sue for defamation. However, universities, as “bodies trading for profit” can sue for defamation but it will be necessary to show a financial loss caused as a result of the defamatory publication. The same may apply to fee paying schools.

Some universities have “charitable status” so this requirement may not be necessary. On the other hand, individuals, whether governors , teachers, or anyone acting in an official capacity in the education sphere, can sue for defamation if their conduct or actions are falsely and seriously impugned.

How strong does the claim have to be to be able to pursue an action for defamation?

The test is whether the allegations are false and cause or are likely to cause serious harm to reputation. This is a high test. For “bodies trading for profit” such as universities, financial loss is also normally required.

 Individuals do not generally need to show financial loss only “serious harm to reputation” meaning they will need to demonstrate the actual impact of the defamatory words published. In the absence of evidence of serious harm to reputation, a claim in defamation will not succeed.

What defences could the person responsible for making the allegedly defamatory statements (or the publication that publishes the allegations) put forward?

The obvious defence is truth. If what is claimed and published is true or substantially true, then that will be a good defence to a claim for defamation. Another strong defence is "honest opinion". Everyone is entitled to express an opinion on a given state of facts, even if the opinion is wrong or unreasonable, provided that it is honestly held.

As long as the opinion can be recognised as opinion - as opposed to a statement of fact - and is held honestly, that will be a good defence to a claim for defamation. There are also certain defences available to newspapers where they can show (a) that the statement complained of was on a matter of public interest and (b) that, in all the circumstances, the newspaper reasonably believed that it was in the public interest to publish the statement complained about.

Is a school, college or university or its governors likely to see published defamatory allegations made of them, without being warned in advance that the allegations would be published?

Most reputable media, whether broadcast media or newspapers, operate under a code of conduct. This code of conduct invariably requires the media organisation to give the party against whom the allegations are to be made, a right of reply, before publishing serious allegations. The right of reply is very important and any media organisation that intends to publish serious allegations runs severe risks if it doesn't give the other party the opportunity to know what the allegations are as well as the opportunity to respond to them. So generally, the school, college, university or its governors will be notified in advance of an intention to publish and will be given the opportunity to reply.

We believe that, as far as possible, the right of reply and indeed the right to seek clarification, should be exercised, in a sensible and time appropriate way so that false or incorrect allegations can be countered and the other side of the story given. This may result in either stopping the story being broadcast or published or may dampen down the impact of the story when it eventually comes out. The media cannot ignore the response. A "no comment" or "declined to comment" is generally unhelpful as it gives the broadcaster or publisher free rein to publish the original story in the knowledge that it has complied with its obligations to offer the right of reply, even if the party complained of did not take up the opportunity to do so. This often results in the harmful allegations being published in full, so it is not generally advised.

Defamation on social media and on the internet is far more challenging as the internet is not properly regulated. Responsible ISPs and websites have appropriate takedown procedures in relation to defamatory comments published. Claims for defamation can be made in relation to allegations on social media platforms but again the "serious harm to reputation" test applies. There may also be jurisdiction difficulties as the party responsible for publishing the defamatory allegations may not be in the UK.

If the defamatory comments do not meet the "serious harm to reputation test”, is there anything else that can be done?

Yes. GDPR regulations require that organisations process personal information in a lawful accurate and fair way so this may be another means to stop or dampen down potentially untrue and damaging allegations. Responsible media organisations also abide by a code of conduct which generally require that if anything published is misleading or wrong, then a correction should subsequently be published. Very often the correction is not as prominent as the original story so this is something that should be negotiated.

It may also be possible to reduce the impact of a harmful story appearing on a Google Search by improving the content that appears on the first page of the Google Search page. Whilst this is not an easy practice, especially if the news story is published on a well-read media website, over time the harmful posts may be “buried” on less viewed pages.

Even if the allegations made do not meet the high test for a defamation claim, we still recommend that any untrue or misleading allegations are carefully considered and properly responded to and corrected so that they do not become part of the permanent record, in particular on the internet.

Any other advice?

Don’t panic! An early indication of an intention to exercise the right of reply generally gives you the time and opportunity to consider the allegations carefully. This will allow you time to take advice on how to best respond, whether through media advisers or, in more serious cases, your legal advisers pointing out the dangers for the broadcaster or publisher in publishing an article as originally envisaged.

A well thought out and reasoned factual reply may prevent a story being broadcast or going to press, at the very least it may also ensure that what is broadcast or published is far more balanced and therefore less harmful.

Gerard Cukier, defamation and commercial solicitor at Keystone Law

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