By: Sonny Zulhuda
Note: this short article was published by the New Straits Times (NST) Online on Friday, 29th May 2020 at this link.
We were reminded by Prime Minister Tan Sri Muhyiddin Yassin (NST, 16 May 2020) to ensure continued education with new methods of online and remote teaching and learning (RTL). He said this must be strengthened as e-learning is the future of education.Teachers and lecturers must develop their skills with this new normal. With necessary skills and knowledge, RTL will not be less fun and interesting. In contrary, being unfamiliar with how technology works may lead to some legal complications. Therefore in conducting RTL, educators also need to take care of those legal risks so as not to end up in a legal mess and potential liabilities.
There are three major legal risks educators and learning institutions need to anticipate in RTL, namely identification, content, and communication.
Legal Risk #1 – Identification
Identities are fundamental. The possibility of people going anonymous or hiding their true identity in RTL can pose legal problems. Unidentified individuals who gain illegal access to the RTL may launch fraud, sabotage or other destructive activities. The instructors need to ensure all participants reveal their true identity before participating in RTL such as in a synchronous online class or seminar.
Besides, it is useful to identify and properly assign third parties involved in RTL. They can be platform owners, content aggregators, or platform administrators. Hence if anything goes wrong in RTL, one is able to apportion the liability to the right person according to the role played. To accommodate this, it is proper for the instructors or the learning institutions to apply clear disclaimer or notifications.
Legal Risk #2 – Content
In RTL, content management is critical. In fact, it is more complex due to the nature of the technology which enables easy sharing and sourcing. Ownership of the teaching materials is one to address. Who owns the materials; the schools, individual instructors, or other people?
Rules under Intellectual Property Rights such as the Copyright Act apply, triggering potential civil and criminal liabilities if infringed. Institutions must educate their instructors about this to avoid potential infringement, though some relaxations may apply under the fair use principle or some licensing scheme.
From the information governance perspective, it is also necessary for learning institutions to classify information and documents used in RTL. Classification of information is critical to ensure that we appropriately use and disclose information; knowing what can be public, what is for internal circulation only, and what shall remain confidential or secret. Failing to classify information may mean exposing oneself to potential legal suits or prosecutions.
Legal Risk #3 – Communication
Finally, it is important to put clear terms and rules to inform all participants of all the dos and don’ts during RTL. Noticeable terms of use, contractual obligations, acceptable use policy, privacy and security of data, as well as dispute resolutions need to be framed in the best and most friendly possible way.
These terms are useful to inform respective duties, rights and limit of liabilities if any. This is important to avoid the spread of offensive, obscene, and malicious content as well as misuse of personal data. In RTL with so much data sharing, this rule is something not to be missed. In Malaysia, breaches under this rule may trigger liabilities under the Communications and Multimedia Act 1998 and the Personal Data Protection Act 2010.
Finally
Having elaborated all the above, schools and universities embarking on remote and online teaching and learning should not delay taking steps to manage their legal risks in relation to the operation of this new norm. Readying oneself for legal compliance is as critical as preparing personnel capacity and proper equipment in RTL.
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