Monckton’s Will Perry considers whether education providers’ online assessments might be unlawful.
The decision of various higher and further education providers (particularly universities), and professional regulators responsible for exams (such as the Bar Standards Board), to hold exams online as a result of the Covid-19 pandemic is contentious. Some students may welcome a switch from the exam hall to the bedroom. Others may see it as a necessary means of finishing their courses in time to take up further study or jobs.
However, some learners will deplore the difficulty of having to take exams from home, whether this affects their performance or interferes with their privacy. How might students rely on data protection, equality and consumer law to challenge this change in format? And what can providers do to reduce the risks of successful legal challenge to their decisions?
Data protection law
Many providers have required students taking online exams to use intrusive ‘proctoring services’ (for example, this one offered by ProctorExam, a leading European online proctoring service). These interfaces generally require students to sweep their room before the exam with a camera and then record video and audio whilst they sit it. Proctoring software may also monitor keyboard and mouse movements, track web browsing data, or require students to share their screen. The justification for such close monitoring is that it is the only way providers can eradicate cheating and ensure fair outcomes for students across the board.
The use of proctoring services will likely involve the processing of personal data and therefore raises various data protection issues that students and providers should be aware of. The two most pertinent are set out below, though other issues will be relevant – such as restrictions on transfers of data outside of the EU, the potential requirement to conduct a data protection impact assessment (DPIA), and the obligation to comply with subject access requests.
Lawful basis for processing
Organisations which process personal data must do so according to one of the lawful bases set out at Article 6(1) of the General Data Protection Regulation (‘GDPR’).
Providers may try to obtain students’ explicit consent (Article 6(1)(a)). However, as made clear by Article 4(11), this must be “freely given, specific, informed and unambiguous”. The “freely given” requirement might be lacking in the higher education context, where there is an imbalance of power between the education provider and student (see Recital 43) – especially where no alternative to an online exam is offered.
Providers might, instead, say that the data processing is “necessary” for performance of their contracts with students (Article 6(1)(b)), or “necessary” for the purposes of theirs and students’ legitimate interests (Article 6(1)(f)) – such as interests in timely assessment and prevention of cheating. However, where alternatives to online exams exist, or less intrusive but equally effective alternative software is available, these gateways are unlikely to be fulfilled. Furthermore, under Article 9 GDPR, the contractual and legitimate interests bases will be unavailable if sensitive personal data is processed (for example, where a video of a student taking an exam could reveal their racial or ethnic origin or health conditions).
Retention of data
All retention policies should be strict. Data captured from a student during an online exam should be kept for “no longer than is necessary for the purposes for which the personal data are processed” (the storage limitation principle under Article 5(1)(e)). Once it is determined that a student has not acted suspiciously, their personal data should be erased. Any such determination should occur within a reasonable time frame. I have heard anecdotally of would-be-solicitors being told that videos and other data captured during their Legal Practice Course exams will be stored for a year following the exam in question. If correct, this practice is unlikely to satisfy Article 5(1)(e).
It has been pointed out (for example, by students taking online Bar Professional Training Course exams), that online assessments unfairly affect disabled students who require reasonable adjustments, those with caring responsibilities (including women, who are more likely to be primary caregivers), individuals with limited internet access (either as a result of location or socio-economic status), and international students in different time zones.
Any difference in treatment could be discriminatory under the Equality Act 2010, which applies to both further and higher education institutions (sections 90-94) and general qualifications bodies (sections 95-97).
Where the education provider constitutes a public authority (e.g. a public university – see R (Ben-Dor) v University of Southampton  EWHC 953) or a decision to introduce online exams is taken by a regulator (such as the Bar Standards Board), any difference in treatment might also contravene students’ rights under Article 14 of the European Convention on Human Rights, combined with a substantive right such as Article 10 (right to freedom of expression) or Article 2 of the First Protocol (right to education, which includes the right to “official recognition” of one’s studies – see the Belgian Linguistic case (No. 2) (1968) 1 EHRR 252).
The key issue here is whether discrimination can be objectively justified by the provider or regulator. Central to this is whether alternatives to online exams were both available and actually offered; such as exceptions which allow disadvantaged students to take exams in person (though these alone may be insufficient for students who are shielding or care-givers),the option to postpone exams to later in the year, or assessment through other means such as coursework or consideration of performance throughout the year (akin to how A-Level and GCSE results are being calculated).
There are three clear ways in which higher education providers may fall foul of consumer law when requiring students to take exams online.
First, information about the format of exams will give rise to implied terms when either: (a) that information was provided before the student entered into the contract and was subsequently taken into account by the student in deciding to enter into the contract or making a decision under the contract (section 50(1) of the Consumer Rights Act 2015 (‘CRA 2015’)); or (b) students can successfully argue that such information relates to the “the main characteristics” of the services under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. If an implied term arises in relation to the exam format, education providers will generally be unable to switch to online exams without students’ express consent (sections 50(2) and (4) of the CRA 2015).
Second, if the education provider has switched from ‘in person’ to online exams on the basis of an express unilateral variation clause in the contract, that term may be “unfair” under the CRA 2015, in particular if: it grants the education provider with an unreasonably wide discretion to introduce variations, which is likely the case where providers are not required to offer reasonable alternative solutions; is drafted in a way that lacks transparency; or allows changes to be made to the format of exams without provision of reasonable notice to students.
Third, if education providers enforce inflexible and harsh anti-cheating rules on online exam takers, these may also be unfair under the CRA 2015. For example, would-be barristers taking the Bar Practice Course have been told that if any other person is:
…detected as being in your physical location, whether visible or not; or overheard in any manner, whether physically detected through movement and making of noise or through sounds irrespective of whether they are in your current location or not during your testing session, the test will be terminated and you will not receive any score.
This gives rise to a risk that students’ (especially those with children) will unfairly have tests terminated, with potentially severe consequences.
Prospective litigation (and how to avoid it)
Students bringing a successful claim on each of the legal bases outlined above might obtain significant compensation payments – in the low thousands of pounds, or potentially more where students can establish that underperformance in online exams has materially reduced their earnings potential. For students who are yet to sit online exams, injunctive relief – as part of an overall judicial review or private law data protection or consumer law claim – will also be available. Though those bringing judicial reviews should first exhaust all alternative remedies, such as a complaints to the Office of the Independent Adjudicator. Students should also consider the possibility of group litigation, which would reduce any costs issues.
The best way for education providers to treat students fairly (and minimise legal risks) is by seeking the explicit consent of all students to changes to exam format, and then considering reasonable alternatives for students who cannot genuinely take exams online. Providers should also take a proactive approach to deciding how online exams are conducted, ensuring the software used is as unintrusive as possible, that reasonable adjustments are available when necessary, and that anti-cheating rules are not unfair.