Guest Author Posted by Guest Author on 26th September, 2016

Reputation Management – the Legal Challenges

Smita Jamdar, Partner and Head of Education at Shakespeare Martineau, the AHUA’s national sponsor, reviews current threats to universities’ reputations and the challenges institutions face in dealing with them. This blog post follows a workshop delivered by Smita at the AHUA Autumn Conference 2016 in Birmingham.

A university’s reputation is its most prized asset, crucial to its ability to recruit staff and students, to forge high quality partnerships and to influence policy and other decision-makers nationally and internationally. Yet it is unlike many other assets because it is not the university’s to own, control and secure as it chooses; instead, reputation is essentially what other people think of the university.

The capacity for institutional reputation to be damaged is also greater than it has ever been. Social media, 24-hour rolling news coverage and the fact that HE is a household issue in a way that it never has been before all mean that the prospect of finding one’s institution the subject of a negative tabloid headline is a very real risk.

Managing threats to reputation is not easy. The legal framework is not helpful to universities seeking its support when the acts of students, staff, visiting speakers, donors or even partners threaten to cause reputational damage. Rather, the law starts from the premise that universities have to guarantee certain freedoms, specifically Convention rights (in particular freedom of expression), freedom of speech on campus under the Education (No 2) Act 1986 and academic freedom for its staff, even where, frankly, they might prefer not to have to.

Freedom of expression can be interfered with only to the extent that is necessary in a democratic society to achieve one of a specified number of legitimate aims, which include the rights of a university to maintain its reputation. Freedom of expression is however regarded as indispensable in a democratic society and the threshold for intervention is accordingly set high.

In relation to freedom of speech, universities are under a positive duty to take all reasonably practicable steps to ensure it is facilitated on campus. The test of reasonable practicability has been held in other contexts to require a greater degree of effort to comply than simply doing what is reasonable. In other words universities are expected to put themselves out to some degree to make sure there is free speech on campus.

In many situations, therefore, universities may find it difficult to justify restricting the rights of students, staff, speakers or indeed anyone else to do or say things that might be embarrassing and damaging to the university’s reputation unless it can be shown that the speech or behaviour fell in some way “outside” the law.

Defamatory material, for example, is not a lawful exercise of the freedoms referred to and a university could lawfully sue for defamation if it is the subject of such material. Furthermore, the university might lawfully be able to require the proponent to desist from publishing the material if it is defamatory about someone else in a way which exposes the university to criticism or other reputational damage. Material will be defamatory if it tends to lower the claimant in the minds of “right thinking” people and exposes the claimant to the risk of serious harm (for most corporate bodies, this will need to be financial harm).

However, there are a number of defences available of which truth, honest opinion, public interest, and peer-reviewed material in an academic/scientific journal are likely to be the most frequently encountered. In particular, the nature of universities is such that even prima facie defamatory material which raises matters of public interest is likely to be considered a permissible exercise of the right to freedom of expression.

So a challenge on the basis of defamation may be difficult to mount. There may be other ways in which speech, conduct or publications that are damaging to a university’s reputation may be restricted. Is it, for example, hate speech which incites hatred towards minorities? Is it harassment under the Equality Act? If so, then restricting it may be justified, but it will be taken into account that universities by their nature are intended to be places where controversial ideas are intended to be robustly debated and so the threshold where this tips into unlawful harassment should not be set too low. All in all the law offers few remedies except in the most serious and egregious cases.

The key to good reputation management therefore lies more in taking control of the counter-narrative rather than trying to control the threat. Agreeing what message the university wants to give in response to a reputational crisis, and then delivering it effectively, consistently, authentically and empathetically will do far more to protect this prized asset than resorting too early to legal intervention.

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