6. Academic Freedom

Food for Thought

Academic Freedom: A Legal Right in the UK
It is 20 years since the 1988 Education Reform Act established the legal right of academics in the UK ‘to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions without placing themselves in jeopardy of losing their jobs or the privileges they may have’.

The UK University & College Union (UCU) has made clear its position on academic freedom which is reasonable in itself. It is as follows:

“ One of the purposes of post-compulsory education is to serve the public interest through extending knowledge and understanding and fostering critical thinking and expression in staff and students, and then in society more widely. Academic freedom is essential to the achieving these ends and therefore to the development of a civilised democracy.”

“ Academic freedom includes the right(s) to freedom:
– in teaching and discussion;
– in carrying out research without commercial or political interference;
– to disseminate and publish one’s research findings;
– from institutional censorship, including the right to express one’s opinion publicly about the institution or the education system in which one works; and
– to participate in professional and representative academic bodies, including trade unions.”

“ Academic freedom comes with the responsibility to respect the democratic rights and freedoms of others.”

Most tests of academic freedom in law have focused on more obvious cases of restriction of that freedom or subsequent punitive action. It is difficult in the majority of such cases to disagree with the need to protect academics who find themselves the victim in such situations. This highlights the use of both the concept of and the right to academic freedom as a defence and in achieving a just outcome.  Abuse occurs when such freedom is used as a framework within which, with malice, to undermine, slander or libel employing institutions, professional or scientific organisations or colleagues and their beliefs.

Many have argued that academic freedom is a particular subset of freedom of expression that applies in law to all. As such, and in its own right, it must attract responsibilities and limitations. For example, as the UCU has pointed out, it comes with the responsibility to respect the democratic rights and freedoms of others. Furthermore, it does not imply immunity from the laws of slander, libel and defamation of character or infringement of privacy. Latterly, there are also important questions about the freedom to incite illegal acts including acts of terrorism.

Thompsons (UK Solicitors) argue that defamation is defined as a false statement made by one individual about another individual (or arguably an organization). Such a statement attempts to discredit the other’s character, reputation or credit worthiness. This could include allegations of criminality, dishonesty, insolvency, lack of integrity or sharp practice and personal immorality.

In order to be defamatory, such a statement must be communicated to at least one other person. If such a statement is spoken then it is described as slander. If it is written, broadcast or shown in a film, it is described as libel. There is an interesting issue here about the potentially ill-advised use of social and other electronic media by some academics. Protection can be sought against malicious acts of defamation.

Protection Against Defamation
A claim against defamation can be made in civil law. Blake Lapthorn (UK Solicitors) argue that in order to bring a claim, a claimant must prove that the defendant has published a defamatory statement to a third party which refers to them. There is a question of malice here. Malice is taken to mean a dominant improper motive for publishing the statement. Malice will be inferred if the person publishing the statement knew the words were false or was reckless to the truth of them. The defences of fair comment and qualified privilege ~ academic freedom perhaps ~ may be defeated if malice is proved on the part of the publisher.

Food for thought. Care must be exercised in claiming academic freedom least its abuse by a few should imperil that right.