I recently came across this article, which elaborates on the actions a headteacher in the UK took against a student who was publishing less-than-flattering blog posts about the way the school was being run. This is not the first time a school is faced with a situation such as this, and it most certainly will not be the last. In this digital world of blogs and opinions being easily published and then shared on social media, schools (and every other organization) need to:
- Understand the difference between an opinion – which is protected by the first amendment – and defamation;
- Have policies, procedures and plans in place to fall back on when faced with a perplexed or difficult situation, such as this.
The difference between opinion and defamation
Opinions MUST be:
- True (justified)
- Fair comment (not malicious) – In other words, honestly held expressions of opinion on matters of public interest, based on facts.
- Published on an occasion of privilege – In other words, the common law recognizes a qualified privilege that protects defamatory statements when the defendant had a legal, moral or social duty in making the statement, and the recipient of that information had a corresponding interest in receiving the information.
Defamation: Content that is slanderous or based on lies, or defames character (institutions included).
How can schools protect themselves from Internet defamation?
Since we’re unable to see the student’s blog posts, it’s difficult to say whether or not, in this particular situation, the student was voicing opinions based on facts or if the blog consisted of defamatory content against the school. However, not knowing doesn’t change the reality of either situation – and the risks they present to schools and organizations alike.
As I do whenever I have a question regarding Internet defamation and social media law, I sent my good friend and colleague, the fabulous Judith Delaney, an attorney who specializes in these specific areas of the law, asking her what her take on the situation is and what, both the school and the student could have / should have done to protect themselves. The following is the informative response Judith sent back to me (along with the definitions provided above):
“As we both know, the Internet may appear to provide total freedom of expression, but defamation law applies to what is published on the Internet and limits what people can post.
For any court, Internet defamation is a complex situation.
However, if the content of what this student blogged (and anonymous continues to blog) was substantially lies or not backed by facts, then, as the first response in the article said – defamation is one of the worst crimes in this world – because it can destroy individuals and institutions or companies with lies.”
Judith answers common questions in regards to this type of situation
Q: Did the headmaster really need to call the police?
Probably not. But, if there were rules in place at the school regarding the use of certain language, etc. would the headmaster have had the right to expel [the student] on that alone? Probably, yes.
It was and is absolutely the headmaster’s duty to protect the reputation of the school and its faculty and students from untruths; or disparagement of the reputation of the school as well as his own.
Q: Did the school need to do consult a defamation attorney?
That depends on whether there are/were written directives for the school to manage these types of situations and if so were the actions taken by the headmaster within those directives – or not.
Q: Should the school and the headmaster have engaged a crisis management professional?
Absolutely. If for no other reason but to address the fact that the blogs are continuing and the situation therefore needs to be addressed in order to nip it in the bud and protect the school’s reputation.
Q: Did the student need to consult an attorney practicing defamation litigation?
Depends on whether he was/is being sued by the school and/or the headmaster, or was being threatened with a lawsuit and wanted to know if he had a defense to his postings.
Another question is: Should the student perhaps talk with a defamation attorney to understand the difference between an opinion (which MUST be based on facts) and just throwing words around without any basis of fact, in the hopes that moving forward he will perhaps think more before he posts? Yes.
Closing words from a crisis management professional (me!)
We’re going to see more and more of these types of blogs – and situations – be developed by students. Therefore, as an educational institution, it is your responsibility to:
- Understand the risks involved with these types of scenarios
- Monitor the online spectrum for red flags and anything that may hurt your organization’s online reputation
- Make sure that each member of your faculty understands the difference between opinion based on truth and defamation – along with the school’s rules and policies in regards to both
- Develop plans, procedures, guidelines and policies that address these types of risks and scenarios, in order to protect your organization – both reputationally and legally