Crisis management for UK school leaders: understanding children's privacy rights
18 November 2022 | Applicable law: England and Wales
At one time, you would have been right to assume that a story about a dispute between two 15-year-old pupils, their parents and a local school was not remotely newsworthy or of any real interest to the British press. Now, that could not be further from the truth.
In the past few years there has been a real spike in stories about events in educational settings, ranging from any sort of dispute between pupils, to allegations of bullying, and claims of inaction by schools to tackle bullying. These topics are being increasingly viewed as newsworthy in the eyes of British tabloid and non-tabloid journalists.
In one recent extreme and tragic instance, a comprehensive school found itself dealing with the aftermath of the death of a pupil at the same time as facing press allegations concerning bullying, which it considered to be unfounded, unfair, and inaccurate. The school, acting on its own behalf and on behalf of the family of two of its pupils, complained to the Independent Press Standards Organisation (‘IPSO’). This was on the basis that an article published by a local newspaper breached Clause 1 (Accuracy), Clause 4 (Intrusion into grief or shock) and Clause 6 (Children) of the IPSO Editors’ Code.
As a corporate body, Clause 4 was not available to the school in question. But this would not stop any school supporting members of the school community in the making of a complaint, if it wished to do so. A school faced with this problem could assist the parent in the making of a complaint on behalf of the pupil as an individual directly affected by the unfounded press coverage or indeed point the journalist seeking to contact the pupil to their editorial obligations under the Editors’ Code.
There are practical considerations below which a school might wish to factor in when journalists become involved.
1. Children have their own privacy rights
Not only do children have their own privacy rights, children are in fact afforded stronger protection in privacy law than an adult. This includes in respect of matters which take place within schooling. The Editor’s Code mirrors this approach and provides additional protections for children acknowledging their particularly vulnerable position.
This is reflected in the terms of Clause 6 (Children) of the Code and in the requirement that an exceptional public interest is required to override the normally paramount interest of children. Although schools do not generally have standing to bring complaints against IPSO, there would be real value in the school pointing out to an enquiring journalist the consequences of breaching the privacy of schoolchildren.
The Information Commissioner’s Office (‘ICO’) also makes clear that children need particular protection when collecting and processing their personal data and there must be a lawful basis for processing a child’s personal data. This includes the processing of a child’s personal data by media organisations and journalists.
Any school approached by a journalist may wish to be proactive in asserting these points and emphasise at the outset to an enquiring journalist that the pupil has very strong privacy rights.
2. Information posted by pupils on social media can be private and capable of being protected
It is very common for children to use social media and to put information about themselves online. This includes photos, videos and comments. It is also common for journalists to attempt to extract social media comments by pupils to include in their own articles.
It is not lawful for a journalist simply to take information in whole or in part from social media and publish it in a newspaper or magazine just because it has been published online by a pupil. IPSO state in their own guidance that information from a social media account (e.g. on Instagram, Twitter, Facebook) cannot be published without agreement. This would include private and public social media accounts.
A journalist must always get agreement from an adult with parental responsibility before interviewing or taking photos of a child about anything relating to their or another child’s welfare. This should be a parent or guardian who has the right to make day-today decisions about the child and has care responsibilities for the child.
The recent decision of the IPSO Committee has clarified that what will constitute an “interview” for the purposes of Clause 6 (iii) is broader than circumstances where a journalist directly solicits comment or information from a child. In fact, depending on the circumstances and the nature of the child’s social media comments, the use of those comments by the publisher on issues that relate to a child’s welfare may engage the terms of Clause 6 (iii) and therefore require consent from a parent or similarly responsible adult.
3. The child’s welfare is paramount
In terms of what can be deemed to be information which relates to a child’s welfare, this covers all aspects of the child’s private life and wellbeing. IPSO make clear that this could include, for example, anything relating to the child’s health, personal life or safety, or anything that could lead to significant intrusion into the child’s life. For example, a story about a child misbehaving or acting antisocially could create intrusion by exposing a child to criticism. In those circumstances, journalists would have to show there was a public interest in publishing information identifying a child and this will be a high test.
Schools might also point out that simply by not naming a child there might still be a real risk that a pupil can be identified within the school community. It may well be insufficient just to withhold a name and can still be a breach of a child’s privacy even if they are not going to be referred to explicitly.
Journalists also must be aware that some children may misrepresent their age on social media accounts, and they are obliged to exercise caution if it appears that a child is younger in age than they claim to be on social media.
There is real value in the school pointing out to journalists the consequences of breaching pupils’ privacy and being proactive in asserting their rights.
If your school is contacted by the press and you suspect that the issues discussed here may be engaged, we will be very happy to advise.