Emma Yates, Senior Associate in Irwin Mitchell’s Reputation Management Team

The pandemic has thrown up a myriad of issues that schools and colleges have had to deal with over the past year and a half. Whilst we were in lockdown educational establishments had to cope with changes including making their premises 'Covid safe', juggling online teaching whilst remaining open for the children of key workers, introducing lateral flow testing and managing the wellbeing of staff, pupils and parents.

Now we are out of lockdown the same leaders are now having to cope with how to deal with the government’s vaccination programme for students and the fall out that that is having, which includes anything from finding anti-vaxxers outside the gates to dealing with upset staff and parents. Everyone in the education sector is still feeling the strain.

Social media channels have always given parents the opportunity to send highly critical messages and 'advice' directly to teachers and to share their opinions on social media and other platforms. Often these messages and opinions can be misleading or completely false and can cause real upset to staff and leaders who are doing their best to teach pupils.

We've seen an increasing number of queries from school and college leaders who want to know what their options are when faced with this damaging material, whether published by parents, students or other third parties, and how to manage misinformation that is distributed when it comes to student vaccinations.

The legal position

Although potentially damaging, not all negative statements or misinformation made about a school or college are defamatory. In order for a statement to be considered defamatory, it must:

  • Be in writing and published to a third party (such as Twitter or Facebook); and
  • Lower the subject in the estimation of right-thinking members of society (in other words, would a reasonable person reading the statement think less of the subject because of it?).

However, a published statement will not be defamatory unless the subject can demonstrate as a fact that it has suffered or is likely to suffer serious harm because of it. This means that published statements which may be offensive, hurtful, embarrassing and/or simply wrong, but don't cause serious harm, are not legally actionable.

Plus, there are a number of defences to a defamation claim. Most relevant are the defences of:

  • Truth: There is a legal presumption that defamatory words are false, so the evidential burden is on the person who made the statement (the "publisher") to prove truth, rather than on the school or college to prove otherwise.
  • Honest opinion: The publisher must show that the statement is one of opinion as opposed to fact, the statement indicates the basis of the opinion, and the opinion is one that an honest person could have held on the basis of any fact which existed at the time of publication.
  • Public interest: The publisher must show that the statements complained of were made regarding a matter which is of public interest. The publisher must have reasonably believed that publishing the comments were in the public interest.

It’s important to note that institutions of central or local government do not have the right to sue for defamation. Schools/colleges which are government funded will fall in this category, whilst private schools and some academies will not. However, no matter the type of school/college, if a defamatory comment refers to an individual member, officer or employee of a school (such as a teacher, head or governor) then they are able to bring a defamation claim personally.

What are your options?

Even if a published statement does meet the threshold of being defamatory, litigation shouldn’t be your first consideration. Not only will it be costly and time consuming, it can often make a bad situation worse by inflaming the publisher and making them more vocal against the school/college. Your main priority will be to contain the publication and limit the potential harm done.

In furtherance of this objective, it is important to recognise the symbiotic relationship that exists between social media and the mainstream media. They feed off each other; social media ‘warriors’ are often inspired by stories reported legitimately by newspapers, TV and radio. Conversely, the traditional media, particularly the so-called ‘red top’ newspapers will trawl social media sites for items of potential interest. In both cases, this just serves to widen the audience for published material.

When these incidents happen, those on the receiving end tend to have one of two reactions: to be so aggrieved and offended at the allegations that they want to rebut them line-by-line in a public statement or they bury their head in the sand, issue a ‘no comment’ and hope it will all go away. Almost invariably, both courses are inadvisable.

Responding in detail only serves to breathe longer life into the issue when the objective is to deny it the oxygen of further exposure. Alternatively, saying ‘ no comment’ doesn’t mean ‘no story’; it can create the perception that there is something to hide which only encourages the persistent journalist to, legitimately, seek information elsewhere, often from sources that are less informed than the official ones.

So, when commenting on matters on social media or in more mainstream outlets, statements should be short and factual, acknowledging the ‘bones’ of the situation, explaining what is being done to remedy the matter (if that is indeed the case), state the organisation’s relevant policy and say there will be no further comment. Staff should be informed that any external media inquiry should be directed to the relevant official spokesperson and not be drawn into comment.

A further approach is to remind parents and students what is and isn't acceptable behaviour, ask them to remove the post and remind them where they can access your policies.

If this doesn't work, it may be necessary to take legal action against the publisher. The first step would be to prepare a legal letter which sets out why the comment is defamatory, what the true position is and then invite the publisher to remove the published statement in order to avoid any further action being taken against them. This could be a light touch 'warning' letter or a full pre-action letter of claim. More often than not, instructing a solicitor to prepare such a letter can help to resolve matters quickly as it shows the publisher that you are taking the issue seriously. Most parents/students would rein themselves in at this stage.

Should the matter still not be resolved, legal proceedings in the High Court may be necessary. This is an unattractive prospect for any publisher: if they fail to discharge their burden of successfully arguing their defence to the claim, they face being ordered to pay damages to compensate you.

Top 5 tips:

  1. Always do your research – it’s essential to be fully aware of all of the facts before you start writing legal letters.
  2. Always know your audience – is engaging with the individual going to make things worse? If it is, then choose another way of dealing with the problem.
  3. Always assume that whatever you write will end up on social media/in the mainstream media – this comes back to our first top tip: make sure that you know all of the facts and make sure that you are happy with the tone and content of your communications.
  4. Always be prepared – whilst the timing and precise nature of a crisis incident cannot, by their very nature, be accurately predicted, there are fundamental actions to be taken irrespective of the specific incident. They should be detailed in a crisis communications response plan which sets out how it will be dealt with; i.e. who is authorised to speak/issue statements, what audiences and stakeholders needs to know, how information will be cascaded through the organisation, who will monitor social media etc.
  5. Always be factual, empathetic and truthful in whatever you say – cover-ups are always exposed and the subsequent reputational damage can be more harmful than the incident itself.

Emma Yates, Senior Associate in Irwin Mitchell’s Reputation Management Team

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