The Research Files Episode 68: Regulating teachers’ social media use

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Thanks for downloading this podcast from Teacher magazine. I’m Dominique Russell.

Teachers are thought of by many as an important role model in the community. And when it comes to drawing a line between a teacher’s professional and personal life, this can be challenging, particularly when it comes to their private use of social media.

This idea has been explored by two researchers from the School of Law at Western Sydney University – Dr Sandy Noakes and Dr Sarah Hook. Their paper, which looks at the status of regulation of teacher behaviour on social media in Australia, found a huge variance in the social media policies that are in place for educators at schools across the country, and that there is room for teachers to be more aware of their rights in this area.

The impetus for this research was a decision made by the High Court in Australia in 2019 on the Comcare and Banerji case, which you’ll hear Sarah and Sandy refer to throughout this episode. This case involved an employee of the Australian Human Rights Commission who used a private, anonymous Twitter account to criticise their employer’s policies. Their employment was terminated because of this behaviour and when they fought this decision in court, the decision of the employer was upheld.

So, could something similar to this happen in the education field? What should school leaders keep in mind when creating or reviewing social media policies? And, what rights should teachers be aware of? Both Sandy and Sarah join me today to discuss these points and more. Let’s jump in.

Dominique Russell: I just thought it would be good to start off things by getting a bit of an idea about your roles at Western Sydney University and why this research was really important for both of you to conduct?

Sarah Hook: My name is Sarah Hook. I’m a researcher and lecturer in media, copyright, and I also look at free speech issues. I also have doctorate in intellectual property. I did this work with Sandy Noakes. She’s an ex labour lawyer, also our lecturer in employment law, and first-year our director, and she has a doctorate in legal education.

And I guess we were sitting around one day very soon after the Comcare and Banerji decision was handed down. And we were a bit shocked at the outcome of that decision, and we were also shocked at a few cases that we had heard about teachers being disciplined and we looked into our own policy about what we (both of us) could say on social media and were a little bit concerned.

And then we decided to look at teachers more broadly and looking at teachers when they’re in that specific position where they’re a member of the community, but they’re also teaching our young kids and they’re really teaching the next generation and that idea that they can’t participate in public affairs in a public way because of their jobs.

And I guess also we were aware, as parents of school children, around 2017 when the same sex marriage debate was ongoing, we were hearing anecdotally from teachers that people in religious institutions had a particular view that they were meant to put about the issue and people in state schools had another particular view that they were being advised that they couldn’t comment against.

And that led us I guess to investigate it further, really piqued our interest and that’s how this research all came about.

DR: And so the paper that you’ve published is split into three quite distinct parts, and in the first part you’ve characterised teacher use of social media into three separate categories. So Sandy, can you describe for me what those categories are and why it’s important for teachers to understand the distinctive differences between them?

Sandy Noakes: Yeah sure Dominique. I think it’s really important for people to understand that our research focuses on conduct on social media outside of work. That is, conduct that doesn’t occur while people are at work and doesn’t occur using the employer’s technology.

And what we found in our research was that it was really important to – even when that conduct was occurring outside of work – it was then important to make a clear differentiation between what we saw as three separate categories of conduct.

So in the first one, the first category is: cases where employees (including teachers) go onto social media and essentially make disparaging remarks about their employer or people they work with or about their employment on social media.

The second category is where an employee engages in bullying, harassing, or intimidating conduct towards other employees on social media. And in the case of school teachers this would extend into inappropriate conduct on social media towards students. And our research actually found that that was the most common form of misconduct on social media by school teachers.

The third category is where an employee’s conduct on social media might not have any direct relationship with their employment, but may still damage the employer’s interests and reputation if the employee’s association with the employer is known. And that commonly happens because so many of us identify our employer on our social media profile, it seems to be a thing that people do.

And we come across a case in the press in early 2018 of a teacher who was employed by Geelong Grammar who was being investigated because she had been found out that she participated in an anti-vaccination Facebook group. Now, from what we could tell, this was a closed group – so it wasn’t a group that was known to the public – but someone had obviously identified her as being a teacher from Geelong Grammar and it was then, the school was then looking into it.

And for us that is sort of that third category of conduct in that, well she’s not disparaging her employer, she’s not bullying or harassing her fellow employees, she’s expressing a view in this group that might not accord with the tenets of the school, or may – if her association with the school is known – bring their reputation, or you know, may cause damage to their reputation, but is not directly related to her employment.

And really, we concentrated in our research then on this third category of conduct. Because really, in those first two – disparaging your employer, or harassing or behaving inappropriately to fellow employees – your employer really does have a legitimate interest in controlling that sort of behaviour and determining how people are or are not to behave. But in that third category, it’s far more difficult for an employer to actually justify why they’re seeking to control that type of out-of-hours or out-of-work conduct.

DR: Yeah, certainly. There are definitely some very clear differences in those three categories then. And so I’m interested in whether you think there’s a general understanding, within the education community in particular, about those distinct differences and the three categories that there are. And even the implications that there are if they behave on social media in these ways. Do you think that there’s a good understanding of that, or do you think that that’s an aspect of employment that teachers might need a bit more support and understanding of?

SH: Well, to be clear, the categories were how we saw the difference in the way cases were handled, so they were the categories we kind of devised on our own. But we think teachers probably do know, or at least are a bit timid when posting on social media. But we found that the individual school policy surrounding what they can and can’t do are very inconsistent. And we believe teachers may not be engaging in things like politics and community affairs due to the impression that they’re not allowed to. And we don’t think that’s correct, no matter what the policy says.

In other words, I guess, the policy might be very strict, but perhaps impermissibly so, and it wouldn’t hold out in court. Yet teachers would unquestioningly follow that because it is a policy. You know, you read a policy, you think, ‘that’s what I’ve got to do’. But we also believe teachers deserve to have a private life. Some precautions, yes, of course, you know, not making friends with students and things like that. But ultimately your job shouldn’t preclude you from doing something like putting a Black Lives Matter frame over your Facebook profile page.

Anecdotally we also found that teachers are conscious of photos that are posted to them in social situations. So, you go to a party and a teacher’s having a drink and someone’s taking a photo, they will go into another room even, just to make sure that there’s no evidence that, you know, they might have any kind of social life whatsoever. Even when they’re not doing the posting, they’re trying to control that aspect of their image.

And this to us seems to suggest that there is a need for further awareness of their rights and further, maybe discussion in the education community about where that line is between appropriate conduct and where your private life is really not open to all of that judgement by your employer.

DR: Yeah absolutely. And so you touched on it there very briefly there, but talking a little bit more about some possible legal ramifications of social media use – I noticed in your report that you mentioned in your report some differences between private schools and government schools as employers. So Sarah, could you go through what some of those differences are in terms of legal ramifications?

SH: Sure, I guess it might be important to understand that in Australia we don’t have a constitutional right to freedom of speech. We do have an implied right recognised in our constitution for the freedom of political communication, but this protection only extends potentially to teachers in state schools, not to private schools. And even there, from that case of Comcare and Banerji, it was found that, you know, even the similar policy for the public service was found not to be breaching that freedom of political communication.

So I don’t think there is any legal avenue arguing that way, that it’s a restriction on freedom of speech. Well, it is a restriction on freedom of speech, but not in a way that you could mount a legal challenge.

We also looked at some of the privacy legislation in Australia and again we found that that really didn’t prevent schools in either system – religious, state, private – from actually looking at people’s social media and then using that breach of, what we would probably consider privacy, to discipline teachers for their behaviour. I think I might let Sandy take over because she looked a bit more at the policy side of religious schools and state schools.

SN: Yeah, so one of the things that I found was that the private religious schools probably have a greater freedom to discipline teachers for that sort of third category of social media conduct where the conduct doesn’t conform with the religious tenets of the school.

So it’s quite common in various pieces of legislation that makes discrimination on a basis of religion unlawful, to find sort of a carve-out, or protection or exception for religious institutions or religious educational institutions in particular. So they probably have a little bit more freedom to control teacher behaviour on social media outside of work in that third category where the behaviour does not conform with the religious tenets of the educational institutions.

DR: And so moving on to part three of your paper now which is where you describe your analysis of some of the current social media policies for teachers that you came across as part of this research. So Sandy, can you explain what you found through this analysis, and did any of your findings of the various policies surprise you at all? I know you’ve said that they’re vastly inconsistent, but was there something that in particular that was of a surprise to you?

SN: Yeah, so we analysed quite a number of social media policies that were publically available on the internet and what we found was that in some cases there was no attempt at all in the policy to delineate between a teacher’s professional and personal use of social media. So the policy just appeared to apply to a teacher’s use of social media whether it was in a personal context or a professional context.

The state system’s policies tended more so to draw a distinction between professional and personal use but this wasn’t common at all in the private system. So it was just the one policy that fit both those categories of behaviour. Other policies we found acknowledged the difference between personal and professional use of social media, but they still, even where they were making that distinction, they still tended to hold teachers to a very high standard in relation to their personal use of social media.

Now my guess is maybe this is tied to that idea that has been around for a very long time that teachers are role models in their community. What I think hasn’t been given enough thought here is what does community mean in the age of social media? Particularly when so many of us now conduct our personal lives in such a public way on social media. And if we take, for example, the periods of lockdown during COVID-19, for a lot of people, it was their only way to socialise.

So this idea that you hold people to that same standard based on the fact they’re a role model in the community, I’m just not sure that that whole concept – which I know underlies a lot of teachers’ professional and personal obligations – has been given sufficient thought in relation to social media policies pertaining to teachers.

Another finding that we came across in relation to our analysis of the policies related to the types of behaviours that the policies regulated. For example, some of them contained an edict that a teacher’s behaviour on social media was not to harm the reputation of the school. Like, it was this very broad, sort of sweeping statement that was quite common. And my questions would be about that, well, what does that actually mean? Does it mean the teachers views have to accord with those of the school, in relation to say social, political or religious matters? What happens if the school’s position on those issues changes? None of those questions are really dealt with in these policies or answered.

Other policies regulated specific types of behaviour. So they do things like remind teachers to be aware of what they like or share on social media; remind teachers about their privacy settings etcetera. Some of the state systems I have to say had policies which actually provided better support or guidance for teachers. So, as I said, encouraging them to have appropriate privacy settings so that, for example, their students couldn’t see what they commented on or liked on social media.

And one of the most permissive policies that I found which was from a state system simply said that a teacher could make comments about matters on social media, but they just needed to make clear that they were making those comments in their personal capacity, and not as an employee of the relevant department of education, which I thought was quite a sensible way to approach giving teachers that freedom, but that freedom then not necessarily having any implications for the employer if that makes sense.

SH: And the biggest surprise to me, I think, were some policies that even said that teachers had to not only be responsible for what they posted on social media, but also what their friends and family posted as well. And we were also shocked at one policy which required teachers to report any negative comment they found about the school. And, you know, we would argue that that goes well beyond the duties that employees normally owe to employers and it probably wouldn’t withstand scrutiny if it was legally challenged.

Another troubling aspect of these policies was that they pretty much all stated that a teacher could be disciplined for breaching them.

DR: Yeah, certainly. And so considering all of those findings then from the analysis of the policies that were publicly available online, what would you say school leaders who are perhaps listening to this podcast, should keep in mind when creating or even reviewing their social media policies that they have in place for their school?

SN: Look I think one of the essential findings of our research was this – just because schools have social media policies, doesn’t mean those policies will be enforceable. Employment law establishes that employees have to follow what are called ‘lawful and reasonable directions of their employers’ and employers can issue those directions through their workplace policies. That’s well established in the case law. However that same law is also clear that the situations where an employer can direct an employee as to how they behave outside of work are very limited.

That is, there are very limited situations in which an employer can give an employee a lawful and reasonable direction that relates to their conduct outside of work. And really, unless an employer can show that that direction has a significant connection to the employee’s employment, it’s not likely to be a lawful and reasonable direction. And our view really is that this aspect of employment law has not been sufficiently considered in relation to some of these social media policies.

SH: I think schools also need to remember that teachers don’t get paid enough to be brand ambassadors 24/7. And they need to remember that teachers are people and they’re entitled to a personal life and they should be entitled to live that personal life on social media as so many of us do now. Especially, you know, the last couple of years with the COVID lockdown and the increase in online learning and things like that.

Cases such as Comcare and Banerji seem to say that anonymity isn’t enough anymore; that you can always be found out who you are online, but we would argue that it should be a clear line. So posts that have nothing to do with category one or category two behaviour, shouldn’t be open for disciplinary action. Teachers are community leaders, but to lead does mean engaging in public, in debate on public issues. And we do need teachers in this space. They’re educated, they know how to educate the public, their voices are really important on public and community issues and it shouldn’t be dictated by their workplace.

DR: And so if school communities – or perhaps a teacher or a school leader who is again listening to this episode – if they don’t currently have a policy in place at the school that they’re working at, is it something that should definitely be considered?

SH: Well having a clear policy does help teachers know what’s expected from them, but I guess what’s to be kept in mind the most is that that policy has to be reasonable. Things such as not making friends with students is one thing. Broad policies that require teachers to maintain the reputation of the school, or policies that say they are never to be tagged in a photo where alcohol appears – they’re just too onerous.

Policies should also be drafted to support teachers, not just to provide directions and discipline them. There were very few policies that provided guidance and support for teachers and we found this really disappointing.

DR: And so moving onto then, to perhaps the benefits of a social media policy. I guess like you’ve just mentioned there Sarah, the support they can provide to teachers may be of benefit. So what are the benefits for employees and employers in a school setting?

SN: I think our argument really is that some of these policies go too far and may not be upheld in court. But of course the teachers will abide by these policies unquestioningly. So I think what really needs to happen for a social media policy to benefit both the teacher and the school is for there to be open discussions within schools about respectful boundaries between both employers and teachers and how those policies can also help not only put parameters around appropriate conduct on social media, but also maintain an appropriate line between social and private lives on the one hand, and your workplace life on the other.

DR: Absolutely. And so just finally then, I’d just like to ask if there are any opportunities for further research in this area?

SH: Oh absolutely. This is an issue that’s only going to get more prominent. I mean we heard of schools that were doing online learning during the lockdown that had some outrageous directions to their teachers about what can be in the room when they were doing the online classroom; who could be in the room – some requiring anyone who stepped into that Zoom background to have a Working with Children Check. Just some very bizarre, very out-there policies. And I mean these are people’s homes, they weren’t given a place, a safe place to be able to record these things. And people don’t always have such control over their environment anyway, especially during a pandemic.

SN: I think we’ve also, in this last year, and I think this is an indication of the interest in this area – we’ve worked with the Independent Education Union in a number of states throughout Australia to actually educate teachers about their rights and responsibilities in this space.

Because there are rights – and it probably sounds from our perspective like we’re pushing more the rights aspect rather than the responsibilities, but I think the policies themselves are very big on the responsibilities without necessarily providing that counterbalance about the rights. So our work I think is really about educating both employers and employees that employees actually do have rights in this area and so simply having a policy is not enough if it’s not sufficiently balanced and recognises those rights.

The interesting thing about this third category of conduct that we’ve talked about on social media generally – and particularly in relation to teachers – is there is no settled legal position on it in Australia as yet. So there’s plenty of scope for further work in this area, and further controversy, I would predict.

SH: We can’t give legal advice. We’re no longer practicing. But if you are a teacher and you’re listening to this and you are worried of the extent of your social media policy, we would really encourage you to talk to your union about it and have a discussion with your management team about expectations.

That’s all for this episode. Thanks for listening. If you haven’t already, be sure to subscribe to our podcast channel on Spotify, Apple podcasts and SoundCloud, so you can keep up to date with our latest episodes. You’ll soon be able to listen to our conversation with Alex Wharton, a teacher in New South Wales who was this year named a Commonwealth Bank Teaching Fellow. He’s doing some great work in his school community to build a strong reading culture, which you’ll be able to hear all about in our next episode.

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