Protecting the reputation of schools and universities

February 22nd, 2013 by Paul Greatorex

You can say what you like about local authorities – and people do, knowing that the authority itself (as opposed to any individual member or employee) cannot sue in defamation. This was first established back in 1891 in Manchester Corporation v Williams [1891] 1 Q.B. 94, where it was held that the council could not complain about a letter to a newspaper alleging that “bribery and corruption have existed and done their nefarious work” in a number of its departments.

Although there were subsequently conflicting decisions, the modern position was confirmed by the House of Lords in Derbyshire County Council v Times Newspapers [1993] AC 534, which is often cited for the proposition that local authorities do not have a reputation that they are entitled to protect.

Two recent attempts to extend that proposition to schools and universities have been rejected by the Employment Appeal Tribunal and the High Court respectively.

In Hill v Great Tey Primary School (judgment here) a dinner lady told a child’s parents that their daughter had been tied to a fence and whipped with a skipping rope by some other pupils, and subsequently repeated that to the press. An employment tribunal found that her dismissal for breach of confidentiality and acting in a manner likely to bring the school into disrepute was procedurally unfair but reduced her compensation on the grounds of Polkey and for contributory fault.

On appeal against the remedy decision only, it was argued that the disclosures made were protected by the right to freedom of expression under article 10 of the European Convention on Human Rights. It was accepted that right can be qualified by the aim of protecting the reputation of others, but argued that on the basis of Derbyshire the school, as public body, did not have a reputation it could protect.

The EAT (Langstaff J presiding) rejected this argument, pointing out that the decision in Derbyshire does not apply to all public bodies and further that a school was not a governmental body and was not political. Moreover, said the EAT, a school’s reputation:

“is a matter of importance – in the case of a small primary school in attracting staff, and children. In these days of parental choice, state schools are in competition to secure funding by admitting pupils.”

The tribunal had found that “the speaking out of a member of staff in an uncontrolled way failed to ensure that the flow of information from the school was managed sensibly in such a way as to protect any pupil who might be seen by a parent or another pupil as a transgressor”. The EAT said this showed that the tribunal had in mind “not the interests of an inanimate public institution but the real children, staff and parents who populated and frequented it”.

Meanwhile in Duke v University of Salford [2013] EWHC 196 (QB) (judgment here) the university had sued the author of an internet blog for defamation. The postings complained about included an unfavourable comparison between the university and the leadership of Hezbollah, and a suggestion that the university was “adopting some of the more odious policies of the great Chinese bureaucratic dictatorship”.

Eady J expressed surprise at hearing the submission that a university is not entitled to sue in defamation to protect its reputation, and referred to earlier cases to the contrary which had distinguished Derbyshire on the basis that universities are not an organ of government. The judge said that any public policy decision that universities should not have a right to bring such claims could only be for Parliament, or perhaps the Supreme Court.

Nonetheless, Eady J struck out the claim on the basis that the criticisms were really about individuals, any damage to the university was purely incidental, and the litigation was “not worth the candle” since any damage to the university would not be effectively vindicated so long as the allegations against the individuals remained in the air. The judge said it was conceivable that an action by those individuals referred to (who were not claimants) could be supported by university funds but that was an internal matter.

Paul Greatorex

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