The rules that govern digital learning spaces: how learning platforms regulate the way we teach

The Covid-19 pandemic shifted teaching from the physical into the digital classroom. This brought about a move of educational activities from brick-and-mortar facilities to online environments, many of which were not designed with teaching for large and small groups in mind. Teachers and universities made use of a variety of technological services, including Zoom, Moodle, MS Teams, but also social media platforms such as Facebook and YouTube. These tools, services and platforms operate under two overlapping legal regimes. First, general legal norms apply, which are enacted domestically or (in the case of the European Union) partially at the supranational level. Second, these services make their use conditional on the acceptance of their own terms and conditions. Of particular relevance for teachers are copyright and data protection law. Copyright law determines under which conditions teachers can use their own and third-party materials to support students’ learning. Under data protection law educational institutions must ensure that the data of their employees and of their students is stored and processed in accordance with the GDPR’s requirements. An analysis of terms and conditions as well as of privacy policies of a selected number of online services exposes inconsistencies and even contradictions between the formal law and the contractual arrangements used by such services. It is argued that legal uncertainty and overly broad restrictions through private ordering unnecessarily restrict teachers in delivering their modules online. As a result, it is necessary to reflect on the implications of unilateral contractual conditions in the digital education sector on the protection of the fundamental rights - such as the rights to freedom of expression, academic freedom and education - that are affected, as well as on the autonomy of universities more generally. This contribution concludes by making concrete recommendations for institutional solutions to address the challenges for the digital university in a post-pandemic society.