Ane’s article has been reproduced below with kind permission.
With screen-based learning now becoming more widespread, it is thought that the UK could follow the US by seeing a shift from campaigning for action on screen exposure and online safety into lawsuits, where the number of US cases relating to edtech, focused on data protection and pupil harm, are already significant. But what could this mean for the independent sector? Litigator, Ane Vernon, discusses and suggests some actions schools can take in order to keep pupils safe which in turn manages the risk of litigation.
Digital learning continues to expand across the independent sector, with many schools investing heavily in edtech to enhance teaching and learning. The attractions are clear: well chosen technology can ease teacher workload, improve accessibility for pupils with diverse learning needs, and help young people build the digital capabilities they will rely on far beyond school. For many bursars and governors, edtech also carries the promise of long term efficiencies – a compelling consideration at a time when independent schools are under increasing financial pressure.
Yet enthusiasm within schools is not always matched by confidence at home. A significant number of parents remain uncertain about the growing presence of technology in classrooms, and campaigns questioning edtech’s value – or warning against its risks – are gaining momentum.
One area resonates particularly strongly with families: safeguarding. Parents want reassurance that edtech devices, school issued hardware, and school wi-fi networks are safe, and that children cannot inadvertently access harmful or inappropriate material – particularly in boarding schools, where the school assumes a more extensive duty of care outside normal classroom hours.
Incidents are emerging, including a case last year in which primary pupils in Scotland were able to view explicit material via search engines on school issued tablets.
For independent schools, the reputational risk of such an incident would be significant. In a fee paying environment where trust and parental expectations are high, scrutiny on a school that inadvertently enables harmful access would be intense. But beyond reputational fallout, another question arises: could the school also face legal liability if a pupil suffers harm after accessing inappropriate content on a school provided device or network?
Discussions around liability are already advancing internationally in two cases in California. The first – MC v Google – alleges that by failing to prevent a child from accessing pornography on a school-issued Chromebook, Google is responsible for the child’s pornography addiction. The second – ZG v Google – alleges that by failing to prevent a child’s access to Discord, Google is responsible for the child being targeted and sexually victimised on that platform. One can see how similar principles might be applied against schools where they are responsible for providing the devices, or access to the school network.
With campaigning groups increasingly active in the UK, and with independent schools often positioned as digital innovators, it seems only a matter of time before similar questions are tested in the UK.
What then can schools do to protect pupils and by corollary protect themselves from being on the wrong end of such a claim?
The first step is to take a clear, strategic view of the school wi-fi and device-provision model. Unlike maintained schools, independent schools often have greater freedom in their choice of hardware, filtering systems, and parental agreements. But with that autonomy comes increased responsibility for ensuring systems are fit for purpose and defensible.
Two key aspects of protecting these devices from safeguarding issues are the filtering and monitoring solutions that are applied.
Filtering systems must strike an appropriate balance between safeguarding and educational access. Whilst the principle may seem simple, the line between the two can be blurred. Additionally, what to filter within a school is something of a moving feast given that pupils’ ages, curriculum design, and parental expectations can vary widely.
Because filtering solutions are rarely infallible – and some pupils can circumvent restrictions – monitoring becomes essential. Monitoring should enable visibility as to what pupils are attempting to view, what is being permitted and what is being blocked. The monitoring needs to be regular and not simply in response to an incident.
Even when filtering and monitoring are in place, given the speed of technological development, schools need to ensure these are subject to regular and robust review. The risk in not doing so is that any issues that do occur are simply not spotted at all or not until it is too late. It is in this vacuum of “What did you know and when” or indeed “What should you have known and when” that legal liability can arise.
A recent DfE survey raised concerns in the state sector as regards both the filtering and monitoring of the devices that they provide to pupils. Whilst similar statistics are not available for the independent sector, all schools are well advised to take the issue seriously.
Schools may also wish to review the terms governing the supply of devices and applications. Where appropriate, providers should accept responsibility – including through indemnities – for the suitability and safety of their products.
Finally, a third aspect is to review the internal policies that govern provision and use of edtech devices. Policies need to be clear, transparent, and consistently followed. If issues do occur it is critical to address them immediately, to prevent further harm and reduce associated legal risks.
Ane Vernon is a partner at law firm Payne Hicks Beach. She specialises in disputes arising in the commercial, education, and regulatory sector, including safeguarding.
For further information, please contact Ane Vernon or your usual contact in the Litigation Department or, alternatively, telephone on 020 3911 2083.
