Social media and messaging platforms are an integral part of the culture of communication between students. However, the usual rules of polite conversation don’t always carry through to social media, whether the chat is public or private. Students express themselves spontaneously and often uninhibitedly via private platforms in the belief that those platforms provide a protected world in which they can think the unthinkable and say the unsayable.
This phenomenon has introduced new challenges for universities when it comes to managing student conduct. In particular the challenge of balancing the rights to privacy and freedom of expression with the creation of campuses which foster mutual respect and tolerance. It is essential, therefore, that universities are able to assess when that balance has been upset and what action should be taken in response.
Right to a private life
The right to a private life (Article 8 of the European convention on human rights (ECHR) and freedom of expression (Article 10 ECHR) are hallowed rights in a democracy and must be respected on any campus. Article 8 is a precious right for students, most of whom are learning to adapt to early adulthood and respond to the responsibilities of living away from home for the first time. It could be argued that they need the freedom to make mistakes, but maturity only develops by learning from those mistakes. Similarly, the right to a private life includes being able to develop one’s own personality and to create and foster relationships with others.
The right to freedom of expression includes the freedom to hold opinions and receive, as well as impart, information and ideas without unjustified interference by a university. Freedom of expression enjoys a special position both under the ECHR and in the academic environment. This is vital to the process of allowing students to form their own opinions and to develop as an individual – which is essential to human dignity and equality. The right not only extends to ideas and opinions that are favourably received, but also to those that offend, shock and disturb – such are the demands of pluralism and tolerance, without which there would be no democracy.
Accused students are often surprised that universities can exercise any jurisdiction over private virtual conversations
Where freedom of speech ends
However, the rights to privacy and freedom of expression are not absolute and can be interfered with or restricted by universities for the reasons prescribed by the ECHR, with the goal being to balance competing rights. Therefore, an interference by a university 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, which is to say permitted by the national law, as well as the university’s own regulations (eg equality and diversity policy; code of conduct).
As further support for the qualified, rather than absolute, nature of those rights, the ECHR Article 17 states that no person has the right to engage in an activity or perform an act aimed at the destruction of the rights and freedoms guaranteed by the ECHR. Therefore, it may be considered necessary in certain circumstances to restrict 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 harmful to the fundamental values – such as equality, tolerance and mutual respect – on which university communities are founded. As a result, statements made in private messaging platforms are not, as a matter principle, off limits to university disciplinary processes.
Where disciplinary action is warranted because the content represents a threat to the rights of others, it is important that a fair procedure is adopted that includes an objective investigation, a reasonable opportunity for the accused students to know the cases against them and make representations in their own defence, and that a judgement on guilt is made by an impartial decision-maker. In cases where guilt is proven on the balance of probability, a penalty that is proportionate should be imposed that takes account of any mitigating circumstances provided by the accused students.
Disciplinary proceedings in these circumstances can be fraught. Accused students are often surprised that universities can exercise any jurisdiction over private virtual conversations. It is common for them to become defensive, and some fail to understand the basis on which the proceedings are initiated. This happens in part because the expectations set out by the university are tucked away in equality and diversity policies that are not always easily accessible and usually only invoked once misconduct has occurred.
Universities should consider adopting an alternative approach that is consistent with the primary purpose of higher education, such as 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, universities should identify their fundamental institutional values and make clear that all students must comply with them if they wish to remain members of the university community. It is a process of education before discipline. Formally instilling the values of mutual respect, tolerance and equality in students is much more likely to promote effective participation in the university community and result in fewer cases of misconduct in the long run.
Geraldine Swanton is the legal director and education sector specialist at law firm Shakespeare Martineau: www.shma.co.uk
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