Right to privacy

The Human Rights Act supports a right to privacy but this does not prevent schools and colleges from confronting staff or students who use technology for the wrong purposes, says Richard Bird. 

English judges do not like privacy. While they have developed a law of confidentiality, both in commercial and private life, they have not had much time for the idea that people are entitled to be left alone.

Wherever there is a clash between the public interest and a right to privacy, the judiciary most often comes down on the side of the public interest. Indeed, it sometimes seems as though English judges will allow anything that the public is interested in to be published, as if curiosity defined the public interest.

This is quite different from the position of European judges, who have limited intrusion into private life unless the public interest is manifest. In one case, for example, it was ruled that it was not 'in the public interest' for a photo of Princess Caroline of Monaco taken on a private beach to be published.

This has also begun to enlarge the rules of confidentiality, so that Prince Charles' journals covering the handover of Hong Kong were given protection.

As public bodies, school and college leaders should not expect the same level of privacy, though, if a court can see a link between the public role and private behaviour. Education leaders are supposed to be role models and moral leaders as well as lead learners.

Do not disturb

In recent years, the Human Rights Act has made the English position much harder to sustain; in particular, Article 8 of the Convention on Human Rights which deals with respect for private life. It covers family life, home and correspondence.

The European Court of Human Rights (ECHR) has extended the boundaries of Article 8. For instance, 'bodily integrity' is considered to be a key part of private life so body searches are a breach. The definition of correspondence has been expanded to include phone messages and computer material as well as letters.

However, the right to privacy under Article 8 remains a 'qualified right'. This means a public authority can interfere with it for the prevention of disorder and crime and protection of national security and the rights and freedoms of others. Any interference must be in accordance with law and proportionate. So how does this affect schools and colleges?

Private emails?

In regards to correspondence, in one case before the ECHR (Copland v UK), a member of staff in an FE college won a case against an employer where her emails had been monitored and (allegedly) enquires made about their content. The ECHR decided that there was no lawful basis for the interference.

The government argued on behalf of the college using the catch-all provision that a college can 'do anything necessary or expedient' for the purpose of carrying out its duties. It said this included monitoring emails and phone use in order to discover whether public resources were being used inappropriately. The ECHR would not accept this argument.

A statute has since been passed which does allow organisations to monitor emails (Regulation of Investigatory Powers Act 2000 and associated Telecommunications (Lawful Business Practice) Regulations 2000). However, it depends upon employees not having a legitimate and reasonable expectation that their privacy will be respected.

Simply put, this means that there should be an explicit policy that the use of school or college equipment by staff may be monitored, both in terms of use and content, and that this rule should be brought to staff's attention.

New search powers

Students, too, regardless of age, may reasonably expect that their personal privacy will be respected. Again, however, this is qualified.

The new law on searches for offensive weapons, for example, falls within the Human Rights Act because the interference is intended both to prevent crime and to protect the rights and freedoms of others and is proportionate to those purposes.

Generally, phone contents are covered by Article 8. Therefore, may schools view text or images on students' mobile phones where there is a suspicion of cyber-bullying?

Normally the student should be told to 'open' the phone and may be punished if s/he refuses.

In addition, it is lawful to confiscate the phone and if there is a strong and reasonable suspicion that the phone has been used as an accessory to a criminal act (like an assault), it may be acceptable for the school to open the phone. There is no case law on this yet.

Make rules explicit

Increasingly, there is an assumption by the law that people should be told what is going to happen to them if they break the rules and that anything not made explicit is illegitimate.

The lesson for ASCL members is that students should be made clearly aware of the illegality of cyber-bullying and harassment and of using telecommunications for this purpose, so that the legal basis for the institution's actions is clear.

Moreover, as with staff, it is important that students are clearly told that, where they break the law or infringe the conduct code, they should have no reasonable expectation of privacy. This should be quite explicitly stated both in any protocol for the use of ICT equipment that
students are asked to sign and in the school or college discipline code.

Forewarned is forearmed, for both institution and individual.