Social Media – Issues and Trends

CAUS 2014 Academic ProgramSeptember 19, 2014Dan Michaluk

CAUS 2014

Outline

• Student expression, policy and law• Gathering social media evidence• And I'll leave you with

• Other issues and trends

• Case law citations

CAUS 2014

Student expression, policy and law

• In a survey of the non-academic codes of 10 universities, only two included language that referred expressly to the internet or electronic communications

• The problem is governed pursuant to general rules about student conduct that are rooted in a university's legitimate interests

CAUS 2014

Student expression, policy and law

• Are all interests the same?

CAUS 2014

Student expression, policy and law

• Are all interests the same?A. Interest in complying with legal duties such as those imposed anti-

discrimination legislation, health and safety legislation and the

common law of negligence

B. Interest in otherwise enabling members of the college community

to use and enjoy the learning and working environment or facilities

C. Interest in raising funds, recruiting and retaining employees,

students and co-operative education employers and the general

interest in establishing and maintaining a strong reputation

CAUS 2014

Student expression, policy and law

• Are all interest the same?-Connection to university interest will flow from an impact on a student's studies or safe enjoyment of facilities-B and W case from York University illustrates-It's difficult not to take responsibility

CAUS 2014

Student expression, policy and law

• Are all interest the same?-This may be evidence of alcohol-related misconduct or actionable incivility-But what context would make it appropriate to take action in response to the publication of this image itself?-What if this was a student athlete?

CAUS 2014

Student expression, policy and law

• Survey shows most reserve rights but exercise them carefully• 6/10 codes reserved jurisdiction extending to the

institution's interest in its reputation

• 2/10 codes referred expressly to reputation

• 9/10 had student athlete codes

AND

• 5/10 had a "personal affairs" limitation

CAUS 2014

Student expression, policy and law

• How is the jurisdiction reserved?• "Proper functioning of activities of the university"

• "Real and substantial connection to legitimate

interests"

• "[Non-jeopardization of] the university's mission"

• "Interests are affected"

CAUS 2014

Student expression, policy and law

• What have the courts said?• Your interest in protecting reputation ranks low in the

eyes of a judge (or, at least, ranks low against the

value in expression)

• It is not reasonable to find expression that is

justifiable in the context as misconduct

• Decision-making bodies need to consider words

spoken and justification and record reasons

CAUS 2014

Student expression, policy and law

• Zhang v University of Western Ontario

CAUS 2014

Student expression, policy and law

• Pridgen v University of Calgary

• Application judge and CA find that "injury" encompasses more than physical

harm – i.e. there is jurisdiction over harm to a natural person's reputation

• But this can be seen showing how judges struggle with reputation

• They want to see (on the record) that the decision maker considered (1) the

meaning of each word and (2) its legitimacy in light of expression rights

CAUS 2014

Student expression, policy and law

• Telfer v University of Western Ontario

CAUS 2014

Gathering social media evidence

• Who?• One person

• One person likely to be a good witness

• When?• Immediately (it disappears)

• Pre-confrontation (it disappears)

• Periodically (duration of publication is relevant)

CAUS 2014

Gathering social media evidence

• How?• A printout of a screen capture is a poor

representation of the evidence…

• … but is usually okay for expression cases

• Printing doesn’t tell you what is linked to what, so

take notes

• Take notes on steps, functionality of tool

• Sign it and date it

CAUS 2014

Gathering social media evidence

• What?

CAUS 2014

Gathering social media evidence

CAUS 2014

Gathering social media evidence

• What?

• How many people read it?

• Who read it?

• How did readers react?

• And don’t forget…• Circumstantial evidence that supports identification

• What else?

• Preserve complaints (e-mail, voicemail…)

CAUS 2014

Other social media issues to watch

• Governance of university social media use and• Proliferation of university accounts

• CASL risks associated with "direct messages"

• Legal and ethical constraints on collecting evidence from social media

• Internet monitoring and the standard of care• Duties to maligned (but otherwise safe)

employees

CAUS 2014

Case law citations

• B and W (1985), 52 OR (2d) 738 (HC)• Canada (Attorney General) v Tipple, 2011

FC 762• Doré v Barreau du Québec, 2012 SCC 12• Lee v Ontario (Ministry of Community

Safety and Correctional Services), [2013] OPSGB No 1 (GSB)

• Lewis v Rancourt, 2013 ONSC 1564 (CanLII), aff'd 2013 ONCA 701, leave to appeal to SCC denied (35676)

• Pacheco v Dalhousie University, 2005 NSSC 222

• Pridgen v University of Calgary, 2010 ABQB 644 

• Pridgen v University of Calgary, 2012 ABCA 139

• Canada (Attorney General) v. Tipple, 2011 FC 762 

• Tipple v Canada (Attorney General), 2012 FCA 158

• Telfer v The University of Western Ontario, 2012 ONSC 1287 

• Zhang v The University of Western Ontario, 2010 ONSC 6489

Social Media – Issues and Trends

CAUS 2014 Academic ProgramSeptember 19, 2014Dan Michaluk