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A difficult balancing act

A difficult balancing act

Published: 6th August 2019
Area: Corporate & Commercial
Author: Geraldine Swanton

Social media and messaging platforms are an integral part of the culture of communication between students.  The taboos that act as constraints in ordinary discourse can have diminishing effect in the group dynamic of social media, whether the medium is public or private.  Students express themselves spontaneously and often uninhibitedly via private platforms in the belief that those platforms provide a hermetically-sealed, protected world in which students can think the unthinkable and say the unsayable.

That phenomenon has introduced new challenges for institutions when it comes to managing student conduct, in particular the challenge of balancing rights to privacy and freedom of expression with the creation of campuses that are places of mutual respect and tolerance. It is essential therefore that institutions are able to assess when that balance has been upset and what action it is appropriate to take in response.

The right to a private life (Art 8 of the European Convention on Human Rights (ECHR)) and freedom of expression (Art 10 ECHR) are hallowed rights in a democracy and must be respected on any campus. The right to a private life includes the right to develop one’s own personality and to create and foster relationships with others.

Article 8 is a precious right for students, most of whom are learning to adapt to early adulthood and to respond to the demands and responsibilities of the increased autonomy afforded to them by living away from home for the first time. One could argue that they need the freedom to make mistakes, but maturity only develops by learning from those mistakes.

The right to freedom of expression includes the freedom to hold opinions and to receive, as well as to impart, information and ideas without unjustified interference by a public body. Freedom of expression enjoys a special position under the ECHR and in the academic environment.  It is viewed as securing the right of the citizen to participate in the democratic process. It establishes a market place of ideas which promotes the search for truth, promotes individual development and is essential to human dignity and to equality. The right not only extends to ideas and opinions that are favourably received, but also to those that offend, shock and disturb – they are the demands of pluralism and tolerance without which there would be no democracy.

The rights to privacy and freedom of expression are not, of course, absolute and can be interfered with or restricted by institutions for the reasons prescribed by the ECHR. It is about balancing competing rights. An interference will be lawful if:

 it is in pursuit of a legitimate aim including the prevention of disorder or crime or the protection of the rights of others (including other students). The most common reason for interference is for the protection of the rights of others;

it is necessary in a democratic society – there must be a pressing social/community need for the restriction;

it is proportionate – the interference or restriction must go no further than is necessary to achieve the legitimate aim in question;

it is prescribed by law i.e. permitted by the national law, as well as the institution’s own regulations (e.g. equality and diversity policy; code of conduct)

As a further support for the qualified, rather than absolute, nature of these rights, Article 17 of the ECHR states that nothing in the ECHR may be interpreted as implying for any person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms guaranteed by the ECHR. It may therefore be considered necessary in certain limited circumstances to sanction forms of expression that spread, incite, promote or justify hatred based on intolerance. Such expression is often described as “hate speech”, though that term is not enshrined in law.

Such conduct is inimical to the fundamental values such as equality, tolerance and mutual respect on which academic communities are founded. Statements made in private messaging platforms are not therefore, as a matter principle, off limits to institutional disciplinary processes.

That position has been recent given judicial approval in the UK courts and in the European Court of Human Rights in relation to the right to privacy in WhatsApp correspondence, personal emails and iPhone material used in the course staff disciplinary proceedings.  In Garamukanwa v UK,[1] Mr G, who was employed by an NHS Trust, was involved in a relationship with a colleague (Ms M) and when it ended, he subjected her and a junior female colleague to a campaign of stalking and harassment because he suspected them of having a relationship. That campaign included sending malicious emails to other colleagues and management, making allegations about Ms M, some of which were sent anonymously, and setting up a fake Facebook account. Though Mr G was warned early on by Ms M’s manager that his conduct was inappropriate, concerns about Mr G’s conduct continued for over a year. Ms M eventually reported the matter to the police. Mr G was arrested, but was not charged. Material obtained by the police and provided to the Trust in the course of their investigation was relied on by the Trust in its own disciplinary proceedings. That material included personal email and Whatsapp messages. Some material was also provided by Mr G himself. He was dismissed for gross misconduct.

The court concluded that private photographs stored on Mr G’s iPhone, as well as personal e‑mails and messages sent to Trust employees, would fall within the ambit of the right to privacy. It was for the court therefore to examine on the particular facts whether Mr G could be considered to have had a reasonable expectation of privacy in relation to the material relied upon by the disciplinary panel.

The court took into account that Mr G was arrested and interviewed in respect of allegations made by Ms M. By that time Mr G had been aware for almost a year that Ms M had raised concerns with the Trust that his communications with her and other employees amounted to harassment, and that the Trust considered his behaviour to be inappropriate. In those circumstances, the court considered it relevant that Mr G had sufficient prior notice of the allegations. Accordingly, Mr G could not have reasonably expected that any materials or communications post-dating Ms M’s allegations and linked to them would remain private.

Student disciplinary proceedings arising from private WhatsApp and other messaging platforms are invariably fraught.  Accused students are often surprised that institutions can exercise any jurisdiction over private virtual conversations. They become defensive and often fail to understand the basis on which the proceedings are initiated. That occurs in part because the expectations that students should embrace the values of equality, mutual respect and tolerance are tucked away in equality and diversity policies that are not usually invoked until misconduct occurs.

Institutions should consider adopting an alternative approach that is consistent with the primary purpose of education i.e. the pursuit of wisdom and the creation of critical minds, as well as the promotion of specialised knowledge. For example, as part of the induction process and in each year of study thereafter, institutions should identify their fundamental values and make clear that all students must comply with them if they wish to become and remain members of the community. It is a process of education before discipline.  Formally inculcating students in the values of mutual respect, tolerance and equality is much more likely to promote effective participation in the community and result in a reduction in misconduct warranting disciplinary action.  That approach is also likely to help defeat claims of breach of privacy.

¹ [2019] 6 WLUK 109

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