HEIs Telling It Like It Is – Correcting False Or Misleading Public Statements

Contemporary culture is characterised by, amongst other things, a willingness to live lives in the public domain; to be is to post on social media. Individual grievances are aired and perceived injustice is exposed. Sometimes the facts become distorted and institutions unreasonably receive public scorn for steps they are falsely accused of taking or failing to take. Duties of privacy or confidentiality often prevent those institutions from seeking to set the record straight. This article explores the extent to which it is lawful to correct false or misleading public statements in such circumstances.

The legal framework – human rights and data protection

The European Convention on Human Rights (ECHR) prevents the arbitrary exercise of power by the state, which includes public bodies such as (registered?) HEIs. It also seeks to achieve a fair balance between the competing interests of the individual and the community, which includes an institution’s own community. The relevant rights in the context of this article are:

Article 8 requires institutions to respect individuals’ private lives. The data-protection regime is derived from Article 8 and ensures that personal data has a lawful basis for processing.

Article 10 requires institutions to ensure freedom of expression, which includes the freedom to hold opinions, as well as to receive and impart information and ideas without unjustified interference by the state (including HEIs);

Neither right has precedence over the other.

Articles 8 and 10 can be interfered with by an institution, provided the interference is:

• In accordance with the law. In practice, this requirement means that the general law and an institution’s own domestic legislation must provide individuals with some indication of the circumstances in which, and the conditions on which, their rights will be interfered with i.e. reasonable foreseeability/predictability;
• Necessary in a democratic society for i.e. there must be a pressing social need for the interference;
• In pursuit of a legitimate aim. The exhaustive list of legitimate aims justifying interference includes the protection of the rights of others. Article 10 recognises, in addition, the protection of the “reputation” as well as the rights of others;

Proportionate. The interference must go no further than is necessary in order to pursue the legitimate aim in question.

The challenge

We have advised on a number of cases in which inaccurate information has become public and left the institution facing a barrage of criticism from internal and external stakeholders as well as hostile press attention. Often the falsity stems from the fact that only one side of the story is being shared, from a very subjective perspective, for example where staff or students claim they are being “persecuted” by an institution for their political or philosophical views or because of their disability, but the institution is in fact acting because of credible allegations of misconduct or fitness to practise concerns. Sometimes the statement is false by omission, such as where institutions have been wrongly criticised for failing to take any action in cases of alleged sexual or racial harassment. Occasionally statements are deliberately false.

Usually, staff and students can reasonably expect that any disciplinary action taken against them by an institution will remain confidential (i.e. private). Disclosures to the public, in particular false or misleading disclosures, however, might diminish, though will not necessarily extinguish, a reasonable expectation of privacy. The challenge for institutions is to know when individual privacy rights should yield to the exigencies of freedom of information i.e. the right of the institution’s community (or the public at large) to receive accurate information preventing it from being misled.

Achieving a fair balance between privacy and freedom of expression

The following factors should be considered in order whether and how to respond:

• Does the false or misleading information relate to matters of legitimate public interest, such as an allegation of serious failure to comply with duties under the Equality Act 2010, health & safety law or the statutory free-speech duty under the Higher Education and Research Act 2017? Such information can be contrasted with information that is merely a matter of public curiosity.
• Are the consequences for the institution and/or its members of the dissemination of false/misleading information significant? The more serious the consequences, the more likely a public rebuttal will be justified. Serious consequences could include disruptive campaigns by staff, students and/or others requiring the diversion of resources to deal with them, the submission of a large volume of complaints or threats of withdrawal of funding.
• What is the minimum information needed to correct the false/misleading information? It will usually be sufficient to confirm, for example that a matter is being investigated or that disciplinary action has been taken, without providing details of the specific case. Does the information need to be disclosed to the world at large or only to select third parties?
• Would a public rebuttal result in any harm to the individual disseminating the false/misleading information? For example, if the individual is mentally unwell, would the rebuttal reveal their health details or be likely to exacerbate their condition? Would the benefits of disclosure outweigh any harm likely to be suffered?

Final thoughts

Institutions are and should rightly be reluctant to resolve disputes or conflict in the public domain. Privacy rights can also survive a degree of publicity and it will be a matter of fact and degree whether a legitimate expectation of privacy has been diminished or lost in the particular circumstances.

Recourse to a public forum should therefore be reserved for very exceptional circumstances and the correction should reveal no more information than is absolutely necessary. While disciplinary and relevant other procedures should be stated to be confidential, institutions could usefully manage expectations by stating that in appropriate circumstances, false or misleading public statements will be corrected.