Imagine you’ve arrived at school bright and early on Monday morning, and several issues are immediately brought to your attention by the designated safeguarding lead. First, she tells you about the student who has sent a message on social media threatening to stab another child. Then there is the Facebook group full of damaging false claims about your staff.
Finally, there are the indecent images of a student, which are slowly making their way around the student population; that’s not to mention the member of staff who has emailed those same images to the safeguarding lead as a way of reporting the problem.
Legal issues arising from social media were once considered to be something that happened outside of school. But updates to schools’ safeguarding responsibilities in England and Wales, as set out by the Keeping Children Safe in Education guidance, mean that dealing with digital risks is now firmly within the school leader’s remit.
That means you will need to make sure your staff know enough about online law to recognise and avoid potential threats to themselves and the school - and be able to escalate issues appropriately.
But where do you even begin with this? I encourage leaders to consider a “triage assessment” of risk based on a colour-coded system: red for criminal or serious safeguarding risk; orange for risk of legal action; yellow for an ethics, policy or reputational matter; and green for “low risk” (no action needed). Here’s how to respond to those first three levels.
Red: criminal and safeguarding risk
Of the issues mentioned in the scenario described at the start of this article, most should be categorised as red.
If a student has threatened someone, for example, or if indecent images are being passed around, potential consequences might include police involvement, prosecution, fines or even prison sentences.
While it’s unlikely to be in the public interest to prosecute children for social media misuse, remember that the age of criminal responsibility in England and Wales is only 10 years old. This means secondary school students may be considered “offenders” if they break the law.
And when it comes to staff, the forwarding of indecent images is a perfect example of how they could break criminal law without intending to commit a crime or harm a child.
So, how should you respond to issues of this nature? First and foremost, all members of staff should know to contact the school’s designated safeguarding lead with a red-level concern.
The safety of potential victims of crime, especially minors, should always be your priority, so call 999 if you suspect a child is in immediate danger.
You can also contact the police on the non-emergency number 101 for advice or to report a crime.
The NSPCC children’s charity offers free safeguarding advice online and via telephone (0808 800 5000), as does the government agency Child Exploitation and Online Protection Command, and SWGfL, a charity that promotes the safe use of technology.
In June 2021, the charity Childline launched its Report Remove tool, which is worth signposting to staff and students. The service helps children to remove nude images of themselves from the internet.
Orange: risk of legal action
In some cases, you may be at risk of legal action - or choose to pursue an action yourself. The Facebook group with comments about your staff would be classed as a threat on this level.
Damaging false claims are likely to be considered defamatory if they cause serious harm to reputation (of the staff or the school), meaning you could sue whoever posted them. Meanwhile, false accusations of child abuse against school staff have resulted in criminal convictions.
However, school leaders should discuss with staff whether to pursue legal action and always seek legal advice first. Bear in mind that if cases go to court, the process can be extremely stressful, time consuming and costly, even if you win.
Another area where schools may run into legal problems on social media is with regard to their responsibilities as employers and on HR matters. Staff can raise workplace-harassment claims for comments made on a WhatsApp group involving other staff members, for example.
Looking at teachers’ social media as part of pre-employment checks also carries legal risks, as their profiles may reveal protected identity characteristics (such as a pregnancy or disability), which could lead to discrimination claims. It’s advised that you inform candidates about social media checks to avoid violating data-protection regulations.
Finally, there’s copyright. Some schools (incorrectly) assume that they don’t need copyright clearance for materials that staff or pupils share online; this can result in costly demands for licence fees. Parents may also be held responsible for pupils breaching copyright at home.
Whether you’re taking legal action yourself over a social media matter - or being threatened with it - it is vital for schools to get legal advice. Some law firms, such as the Internet Law Centre, specialise in cases involving social media.
Staff who raise discrimination or bullying/harassment claims emerging from social media misuse should also seek the support of their union.
Yellow: ethics, policy and reputational matters
These issues aren’t serious enough to need police involvement or legal advice, but nonetheless require some action. For example, if a teacher is receiving “friend” requests from a pupil on their private social media account, I would consider this a yellow-level risk.
Prevention is better than cure here: clear policies and codes of conduct are vital to ensure that staff and pupils know their rights and responsibilities online. The NEU teaching union provides advice on this, as does the UK Safer Internet Centre.
The key message, with all of these levels of risk, is that school leaders need to educate staff, pupils and parents on how laws apply to online activity - but to do that, they first need to educate themselves.
Holly Powell-Jones is founder of Online Media Law, and is online-law leader for the Global Equality Collective
Please note: this article is for information purposes only and does not constitute legal advice
This article originally appeared in the 15 October 2021 issue under the headline “Red alert: not all safeguarding risks online are equal”
Find out about Tes Safeguarding Awareness Week 2022 (16-22 May). Everyone has the right to feel safe and this week Tes are offering free webinars, expert guides and resources to help support your school raise awareness around important safeguarding issues.
