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Marketing law - Balancing confidentiality obligations with transparency

Marketing law – Balancing confidentiality obligations with transparency

Published on March 20, 2023 by Stephanie McLuckie and David FordStephanie McLuckie and David Ford

This article was originally published in the School Marketing Journal in Term 4, 2022.

In the previous edition of the School Marketing Journal, John Le Cras wrote about the communication challenges facing school leaders when responding to allegations of sexual abuse. This is a prime example of a crisis in a school where the obligation of confidentiality prevails over a PR strategy based on open and transparent communication.

As lawyers, we advise and counsel school leaders on the legal implications of their decisions and actions. When a crisis involves responding to allegations of child abuse, this will include advice relating to mandatory reporting requirements and obligations regarding confidentiality.

Child safeguarding frameworks and other policies such as complaint handling, behaviour management and privacy policies will provide a guide to managing many situations that arise internally in schools. They also generally include a promise to keep matters that are reported and are under investigation ‘confidential’, so far as possible. While this is an important promise to make; it is a difficult promise to keep. It also does not assist you to develop your PR strategy.

This promise of confidentiality may be underpinned by the common law duty of care owed to the students and staff concerned, privacy law, a contractual or equitable obligation of confidence or even a legislative duty not to disclose information that identifies a child (such as in relation to Family Law, Criminal or Child Protection proceedings).

Further, personal information must always be collected, used and disclosed by a school in accordance with the Australian Privacy Principles contained in Schedule 1 to the Privacy Act 1988 (Commonwealth). Communications that identify students (even if this is not by name) contain personal information and should not be disclosed without consent (unless a relevant exemption applies). Where a situation involves a child, you must consider whether that child has capacity to consent.

Your general duty of care (to take reasonable actions to prevent harm to all your students) must also be balanced with your duty of care to the individual students and/or staff members involved in any crisis and any legal requirement to keep such matters confidential.

State legislation is likely to require you not to disclose information about the identity of a child abuse victim. Even general information about a situation may by context identify a victim and breach your duty of confidentiality. For example, while naming a perpetrator quickly may protect other students. it can sometimes by context identify the victim, impact police investigations or potentially lead to an action in defamation against you or the school.

On the other hand, information identified as confidential (even under law) may be disclosed due to overriding legislation, by court or tribunal order, or be subject to subpoena. There are also mandatory reporting obligations to consider, which require disclosure to the police or other authorities. in the event of suspected child abuse. Legislative exemptions may also authorise you to exchange information with other organisations to promote a student’s safety or wellbeing.

While legal advice will assist you in meeting legislative requirements and balancing competing interests as you prepare communications, the advice may not always be consistent with your general PR strategy.

PR professionals will advise and counsel school leaders on the public implications of their decisions and actions, and the expected response. Good PR strategies will generally involve transparent and targeted communications to the school community to manage information, build support and preserve the school’s reputation.

Where there is a duty to keep matters confidential. there is limited scope to be transparent with your staff, students, the school community and the wider public. In those cases, consider seeking legal advice regarding your PR strategy and communications. When a school is under attack from the media and the community, it is often accused of not responding quickly enough or not responding at all. Unfortunately, these situations are difficult to navigate, as your communications will be influenced by your duty of confidentiality.

You may also consider seeking advice regarding defamation, in cases where there are members of the public or the school community publishing unfounded accusations or untrue statements (online or by some other medium), which are damaging to the school’s reputation. While defamatory statements may be posted at any time, they are more common in the wake of a crisis or during periods of change.

In our experience, commencing an action in defamation is difficult, expensive and often likely to bring more attention to a situation. However, if you act quickly, you may have some success in having publications removed by request to the publisher or by a third party website host.

While there may be some tensions between PR and legal objectives, there are significant benefits in working together.

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