IT phone home

To read some media accounts, mobile phone technology and the internet are destroying the very foundations of school discipline. The reality perhaps isn't that extreme, but neither are the answers that straightforward.

Judging from calls to the ASCL hotline, fortunate is the ASCL member who hasn't yet encountered one of the following scenarios.

A student who is punished calls a parent on a mobile phone. Within hours, or less, the parent arrives at school demanding that the child not be disciplined without express consent.

A parent arrives at an interview concealing recording apparatus and parents even encourage their children to record lessons to prove a teacher incompetent.

Websites such as Rate Your Teacher, Beebo and Friends Reunited allegedly contain libels about individual teachers and schools or colleges.

Students are caught using mobile phones to record 'happy slapping' or premeditated acts of indiscipline. Bullies taunt their victims through texting.

No simple answers

One may be left with the impression that schools can only watch helplessly as things go from bad to worse. That isn't necessarily so.

Although school and college leaders are not completely helpless, it is only fair to acknowledge that the answers are not simple. Our courts are very jealous of the rights of free speech as a necessary part of an open and democratic society.

Teachers are not, as teachers, private individuals. So to film or record a teacher in class is probably not a breach of the Right to Private Life because the teacher is fulfilling a function in a public authority.

Similarly, schools or colleges may not be protected from defamation on an internet site, though individuals will be.

Legal action is generally unwise as it can serve to draw more attention to the accusations via media reports. In the end, you may fail to prove that the statement was not an honestly held (even if mistaken) opinion on a matter of public interest.

However, it is worth contacting the company that hosts the site. In English law, an internet host is responsible for what is published on a site, regardless of caveats of opinions being that of the author. The host company is liable if it knows of a defamatory site and will normally remove it once alerted.

In the case of bullying, the principles are not new even if the technology is. We will not know for certain until a case reaches court, but if internet or mobile phone bullying out of school provokes bullying at school, it would seem to be reasonable to discipline a student regardless of when the message was sent.

The level of penalty should be proportionate. If a student is being tormented to the point of breakdown, permanent exclusion may well be appropriate. When investigating, it is worth remembering that the standard of proof for disciplinary exclusion is the balance of probabilities. Similarly, a student who incites another to misbehave is guilty of indiscipline.

Secret recordings

In the case of covert videoing or photography, if the ensuing video or photo will seriously undermine the teacher, exclusion may well be justified. It will be up to the school or college to prove that this is so.

It may be lawful to film a teacher, but filming or recording any student in the class could fall foul of human rights legislation. A school or college should be entitled to protect its students from unauthorised filming and to discipline any other pupil who does film or record them.

An institution should be able to justify a policy that states that no recording of any kind may be made without permission.

Likewise, a school or college may ban mobile phones. This does not constitute a breach of a student's human rights and parents who try to use that argument are misinformed.

While policies do have to be 'proportionate', the rise in muggings for mobile phones and the 'happy-slapping' craze would seem to provide ample justification.

And the parent with the hidden recorder? While there is probably no recourse, the school or college has absolutely no need to pay any attention to a clandestine recording.

One approach is to ask parents who arrive with a complaint or concern whether they want a formal or an informal hearing. In the former, you will treat any discussion as a formal complaint to be heard by governors and recorded appropriately.

In an informal meeting, they will be told that you will try to sort the matter out and assume that neither side will quote subsequently. You can add that you will not record the conversation, and you expect that they will do the same.

When country children were first taught to read, old men complained that you couldn't walk from village to village without seeing 'bad words' written on stiles. Each new technology brings its own challenge. But the law will support reasonable responses.

By Richard Bird, ASCL's legal consultant