Academies must login to e-safety issues

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Academies and those running them are being warned that they could be held directly responsible for any legal liabilities that arise as a result of online threats to pupils. 

The stark warning is revealed in a newly published White Paper written by legal expert Dr Brian Bandey, who says that whilst legal obligations surrounding e-safety are largely the same between state schools and academies, a school’s liabilities will often be shared with a local authority or council. 

However because of how an academy is structured, the legal exposure and liabilities are focussed exclusively on the Academy Trust and its Directors. 

Dr Bandey said: “Company Directors are almost always in the firing line when it comes to litigation so this issue means an individual, perhaps the head teacher or someone else, can be held totally responsible for the e-safety of pupils. 

“The Academy Trust must therefore ensure there is adequate employer and public liability insurance in place to support its activities.  However personal liability will not arise if governors carry out their duties in good faith and the general opinion is that personal liability insurance for governors doesn’t offer good value for money because those acting honestly and within their powers will not require it.

There are a number of overlapping areas in law that are concerned with the e-safety of pupils and a school’s ICT, whether it relates to pornography, accessing inappropriate sites or online bullying and harassment. 

Under The Health and Safety at Work Act 1974 Academies must have a policy covering the e-safety of pupils and ensure it is implemented.  Although the Academy Trust can delegate responsibilities, it can never delegate its legal obligations in respect of the health and safety of pupils.  Therefore Academies must maintain an audit track that clarifies responsibilities and demonstrates that all relevant tasks are being carried out, Dr Bandey said.

“The law of negligence is another key area that cannot be delegated or avoided.  The toxicity of parts of the internet to young and developing minds, the determination of children to take risks and the susceptibility of ICT to be used as a vector of hostility and bullying are unavoidable facts.  Taking this into account the Academy, along with all the personnel and organisations that support it, must consider its ‘duty of care’ and introduce appropriate measures where necessary.

“Next there is The Law of Occupiers Liability which is an area of the law that applies to Academies but not schools because, unlike a school, the Academy owns the land and the buildings it operates from.  This means there is a duty to ensure that the visitor, or pupil, will be safe when they use the premises. 

“Criminal law is another legal area that increasingly relates to e-safety and concerns the liability of the academy for the criminal acts of employees and pupils.  Whilst this is an important, complex and emergent area of the law an Academy can be convicted of any offence as long as the punishment can be a fine.  The Academy can also be held liable by the ‘doctrine of identification’ which is also known as the ‘alter ego doctrine’.  This means a court will recognise certain senior individuals, and their acts, as being the acts of the academy.

“The final area effecting Academies is Data Protection Law, which is one of the most pervasive pieces of legislation in the corporate world and is now having a major impact on Academies.  If a pupil’s personal data escapes the Academy a fine of up to £500,000 can be levied so it is absolutely vital that Academies consider data protection when looking at all aspects of e-safety.”

School Leadership Today
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