Liability for linking?

Chris Craft has posted an
interesting scenario
about the potential legal liability of using Slideshare
, or any
non-district-sponsored web service, that has advertisements that may be
inappropriate for school-age children.

I will first offer my typical caveats that

  1. I am not in an attorney-client relationship with anyone reading this;
  2. Although I’m pretty sure that I’m correct, you rely on my opinions at your
    legal risk; and
  3. I always encourage educators to consult with their local school
    organization’s attorney about any legal questions that they may have.

That said, here are my thoughts…

It seems to me that Chris’ practice of embedding his Slideshare presentations within his
district-sponsored Moodle system, combined with his district’s blocking of
Slideshare, should be enough to protect him from claims that he negligently
exposed children to inappropriate Web content. He’s not sending students to the
Slideshare site directly. In fact, his district is blocking students’ ability to
do so. I think it’s a bit of a stretch to say that Chris could be liable for
students accessing the site from home. That would sort of be like trying to hold
Chris accountable when a student used Google at home to look up inappropriate images
just because the student also used Google at school (where access to such images
was blocked).

If he wanted, Chris might be able to strengthen his case by including an
explicit notice that he and the school have provided safeguards against access
to inappropriate content, that students should access school-related content
only within those safeguards, and that he and the school are not liable for
students’ deliberately bypassing those safeguards at home. Such a notice could
be on his Moodle site, in a note sent home to parents, part of the
student-signed acceptable use policy (see, e.g., a model AUP from the Indiana
Department of Education
), or all three. Another potential safeguard might be
a popup window that appeared whenever a student clicked on a link to an external
site. The text in the window could note that the student was leaving the
district web environment and disclaim liability for any further actions by the
student on other web sites.

The essence of negligence
is whether educators acted reasonably under the circumstances. Given the
safeguards already in place and maybe the additional ones that I’ve briefly described,
I think Chris is probably okay when the situation is viewed in its totality.
It’s one thing to hold him and his school liable for a direct link to
inappropriate content. The further away from direct linking a student gets (2
links? 5 links? 10 links?), the less likely a court would be to hold Chris and
the school responsible. There’s no bright line here, but ‘reasonable
conduct
’ should win the day…

4 Responses to “Liability for linking?”

  1. Dr. McLeod,

    Thank you so much for taking the time to weigh in on this question of mine. One small correction, the Moodle installation is on my shared hosting space and is not district-sponssored. My school is fully aware of its existence and they are supportive of its usage. I wonder if that changes the dynamic, though, in regards to questions of liability.

    Thank you for your help…

    Chris Craft

  2. Yes, I think that changes it a little bit. You’re still taking precautions, but now the instructional tool to which you’re driving students is not under district control. As long as students access it only through the district technology systems (which block access to Slideshare), all is fine, but if you’re driving students to it for homework that’s different because now the district doesn’t have the ability to set up blocking systems to protect kids. The question now becomes for how many links down a hyperlink chain will a court hold you liable? Two? Six? Ten? No one knows the answer.

    If you added the other safeguards I mention in the post, I’m guessing you’d be fine. But note that your district also could tell you to quit using Moodle as an instructional resource. See http://tinyurl.com/2bdrpo

    A tough call. I’ll forward this on to some other education law folks. Hopefully they’ll chime in…

  3. An interesting issue, one that has not yet come up in any of the schools I work with. Most likely because they are private schools (by the fact that they are parochial schools in a province that no longer funds religious education…) and are therefore self-managed.

    I am still trying to get teachers to stop asking students to do random google searches (can you imagine what happened when students were asked to search about nurses, with no parameters – this really happened in one of the classrooms!).

    Things will likely change as I enter a large public school in a large school board. Considering how much I do incorporate technology into my bag of tricks…I am looking forward to eavesdropping on this conversation!

    thanks for bringing it to my attention – a real eye opener!
    Tracy

  4. Great conversation, Scott! This this line says as much as we can do:

    “The essence of negligence is whether educators acted reasonably under the circumstances. ”

    I’m not a lawyer either, but I think if you have taken reasonable precautions, and documented what you’ve done (in a note to parents would be the best way), the district should feel safe from prosecution. After all, look at filtering software. They have horrible track record (10% slippage at the very best), yet districts feel safe it will protect them from a lawsuit.

    Personally, I think the best measure of all is teaching responsibility.

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