Leader magazineASCL - Association of School and College Leaders

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Electronic communication is subject to the same laws as the printed form, warns Richard Bird. Call your colleague a 'wazzock' in a lighthearted email and you could come to rue your frivolity.

Despite the ubiquitousness of email, people still seem to believe that electronic communication is somehow ephemeral and doesn't matter.

Witness the teachers and lecturers who would never think of writing a personal letter to a student but who email (and text) with reckless abandon.

In schools and colleges where email has been encouraged as the main means of communication, there is the temptation to use it to swap comments about colleagues and students as if the words will cease to exist as soon as the email is read. To talk cyber for a moment: this is so, not so.

Cyber defamation

Legally, emails are like any other form of communication between two individuals about a third party. Defamation is defamation: on paper, by voice or in cyberspace.

Emails are, of course, data. If that data is held in a system, it falls under the Data Protection Act and under the act, a person is entitled to see what data is held on him or her. While it may improve the income of lawyers to argue about which emails can be said to be kept in a system, it would be imprudent to assume that emails won't be handed over to a third party.

What consequences may follow from incautious emails? It is, admittedly, unlikely that a member of staff will pursue a claim for defamation because the deputy has described him as a 'pompous wazzock' in an email to the head.

On the other hand, it would be asking for trouble to have that deputy conduct an investigation into that teacher.

What applies to members of staff applies with even greater force to comments about students. If a parent discovers that, to the partnering FE college, her son is 'a complete idiot' and her daughter is 'a bit tarty' then the fairness of internal assessment is likely to come into doubt. In a school, any email that appears to be in the Casablanca tradition of 'Round up the usual suspects!' is likely to blow an exclusion case out of the water.

Then there are the 'Bridget Jones' emails running between staff. What seems to one participant a bit of banter may seem to another a gross and harassing intrusion into private space. The employer has vicarious responsibility for harassment.

The informal nature of emails also encourages people to write as they speak. Anything written tends to come over as more aggressive than an equivalent verbal exchange. A formal grievance about 'threatening emails' from senior management has hovered over even well-intentioned communications.

Email code of practice

It is no good giving up emails. Even if we tried to put that djinn back in the bottle, some passing surfer would let it out again.

It is far better for a school or college to establish a clear code of practice on email. The policy should apply to any use of school equipment and/ or software or addresses provided by the school. It must make it clear that there can be no expectation of privacy in using school equipment.

The code should The code should spell out that emails are to be treated as if written on paper. Staff should be warned that they should send nothing by email that might cause them concern in cross-examination by a skilled and persistent advocate. Any comments should be based on evidence.

Similarly, since email communication with students about their work will increase, it is also important to establish that no communication with a student may in any way take advantage of a position of trust or breach the duty of care.

Finally, since the government is determined to increase email communication between parents and schools, schools will have to ensure that this does not merely facilitate communication without improving it.

Publicised protocols should address how quickly the organisation will reply to an aggressive five-page attachment and how the school responds to emails which appear to be merely vexatious.

There should also be a clear policy as to how far parental emails will be allowed to interrupt the normal workings of school discipline.

And of course, after establishing the policy, it is necessary to train staff and check up on the operation of the policy.

The electronic revolution is a wonderful thing but only if we have clear rules for its use and a general understanding that the law does extend into cyberspace.

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