Using social media to improve, not impair, your prospects

Following up on my post from last week, the dangers and pitfalls embedded in the use of social media, like Facebook, are growing increasingly clear.  But an equally important issue, which I did not touch on below, is how these tools can be used to maximize their benefits (of which there are plenty!). 

Teacher Newsmagazine, a publication of BCTF, recently carried an interesting article by prominent Vancouver lawyer Tony Wilson, who practised intellectual property law at Boughton.  He speaks directly to students and educators and advises them on how to use social media to protect, instead of diminish, their online reputation, while reminding us fully of the precautions we should take.  Wilson refers to a new area of law emerging on this subject:

The online world has created a new area of law in this age of Web 2.0. Its called Online Reputation Management Law, and it straddles the law of defamation, freedom of speech, privacy law, copyright law, and trademark law. It also involves the non-legal (but equally as important) fields of public relations and crisis management. Many of the legal issues in this area involve Facebook, which has over 350,000,000 users, (including about 90% of all the middle school and secondary school students you and your colleagues teach every day. You might be a Facebook user as well.)

Digital information presents fundamentally different material for publication from any content we have seen before because it is so easily reproduced, and, in part for that reason, once it is created and released it is almost impossible to retract.  For better or worse, you do not need a printing press to spread words or images in front of the minds of the many.  Copy and paste, linking and other web functions have lowered (or liberated – depending who you ask) the bar for self-styled commentators and editors.

I remember when I was a pre-teen the worst thing someone could do was ask you whether you had a crush on someone while secretly recording your conversation.  The possibilities are now endless of how someone can damage your reputation or otherwise ruin your relationships using any number of devices that sell for relatively affordable prices and are operational with relatively unsophisticated levels of training. 

But now, like back then, the greater risk posed to your own reputation is yourself.  Reproducibility and irretractability of digital information are two basic elements of our web-based society.  We deny them, or minimize their significance, at our own peril.  Students have broad ambitions; based on their age and the common use of social media, it is relatively easy for a momentary lapse in judgment to damage their career prospects.  Similarly, educators, because of their unique role with respect to youth and the advancement of knowledge, have concerns of equal importance.  It is essential for both these groups to adopt clear standards, both personal and professional, when using social media.   

See here for a pamphlet by BLG on Education Law that contains an interesting article on a user’s guide to social networking that is tailored to school staff.

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Facebook as a microphone for misdeeds and mistakes

There is usually a considerable lag time between the law and new, popular technologies.  It takes most of us a while to figure out what each new item is all about.  Then, once one becomes a real money-maker, there are those who claim it was stolen from them.  Others still who manage to use it in a way that invites some risk of liability upon themselves.  Social media, such as Facebook, is a perfect example.

It is that last part that fascinates me and should hold much interest for students and educators.  There have been a couple of news-bytes over the past week that show some of the ways social media interacts with law.

  • The New York Times reported last week that a student in Florida who was suspended for criticizing a teacher on Facebook can proceed with a law suit against the school.  The student had created a Facebook group entitled “Ms. Phelps is the worst teacher I’ve ever had”.  The school said it amounted to “cyber-bullying”.
  • The Globe and Mail reported yesterday that the conversation of a 14 year-old Port Alberni girl on Facebook resulted in a possible averted school shooting in Washington state.  The girl was chatting with a 17 year-old student who mentioned that he had weapons and was planning to go on a murderous shooting spree at his school.  Her parents noticed the comments and called the authorities.  The boy was arrested.
  • Tanya Roth at the blog “Law and Daily Life” discussed yesterday the story of a sociology professor in the US who was put on administrative leave for comments on Facebook that jokingly suggest she wanted to kill her students.

Right or wrong, these events show the potential legal consequences of using Facebook.  Social media is designed to replace much of our traditional communications, particularly among friends and family, which used to be carried on in a more private setting and with a different context.  But the way we engage each other has shifted, and a whisper on Facebook may be heard like a megaphone. 

The law might stay out of our bedrooms, but it can enter any room with a modem.

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Where the ivory tower meets the bench

University Affairs ran an interesting article earlier this week on the intersection between higher education and the law, discussing the stories of three academics who contributed significantly to the administration of justice by their roles as experts in court proceedings.

Experts, usually professors or researchers, fill a unique position in helping a court arrive at a just outcome in a dispute.  Trials generally work by witnesses sharing information about what they have personally observed or know to be true – lay witnesses must usually have personal knowledge about an issue for their evidence to be admissible.   Judges don’t have time for opinions.  Expert witnesses, however, are allowed to offer their opinions on things that they have not observed directly.   This is because judges and juries often need input from an expert to make sense of a technical or obscure event or calculation and it allows them to fill in the gaps or draw inferences based on an expert’s say-so.

A recent example of the important function of experts in court was played out over the summer during the Braidwood Inquiry, where doctors and professors argued over the impact of tasers in the death of Robert Dziekanski.  An expert witness can often make the difference between victory or failure in court.  Lawyers are encouraged to rely on professors and others to help make a case, and experts should acknowledge what they bring to the table in those situations even if it means getting a theory or analysis grilled in court.

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UVIC Students’ Society votes to revoke status of pro-life club

The University of Victoria Students’ Society (UVSS) voted last week to revoke the club status of Youth Protecting Youth (YPY), a pro-life group on campus.  The move caps a stormy series of events between the UVSS and YPY.  In October 2008, the UVSS denied club funding for YPY but maintained its status as a club.  This decision was repeated in the fall of 2009, and activism surrounding abortion at UVIC reached a peak in October 2009 with a well-attended public debate on campus.  Erin Millar at Maclean’s has recent coverage here and some older coverage see here

The dispute between the UVSS and YPY has cast a wider scope of interest with the B.C. Civil Liberties Association (BCCLA) throwing its hat into the ring in favour of YPY, condemning the UVSS’ conduct.

The UVSS’ position appears to be based on its powers under Part E (Discipline) and Part F (Harassment) of Part III of the Board of Directors Policy Manual.  Anyone who feels that a student club has engaged in harassment can complain to the Clubs Council committee of the UVSS.  The Clubs Council investigates and reports to the UVSS board of directors, which is entitled to discipline the club by taking certain measures, including denying funding or revoking club status.  The UVSS has stated that in this case it is responding to such a complaint in relation to YPY.

The problem is, according to the BCCLA, that it appears the decision was taken as a result of the premise behind YPY rather than particular conduct (i.e. what it is rather than what it does).  This, simply put, is anti-democratic.  Now, as Erin Millar suggests, the battle might shift to the courtroom.

The UVSS’ decision raises two interesting questions:

  1. what is the role of the university – UVIC – in all this; and
  2. how will the dispute likely get resolved if it did go to court?

First, despite the obvious connections, there probably isn’t much of a legal relationship between this decision and any claim by the students in YPY that UVIC has done something wrong or should do something different now.  In general, student unions are societies independent from the universities on which they operate (see here as an example).  The members of each society – namely, students at a particular university – contribute fees to provide funding, part of which is allocated to various student clubs.  When the powers that be within the society determine a certain club has been acting out of line, they have the discretion to turn off the tap. 

Politically, as well, it is generally unwise for a university to wade into a dispute between student groups unless unrest is involved.  UVIC probably doesn’t want to touch this one with an opening ceremony length torch. 

Second, the preliminary hurdle here is whether the dispute will make it to court.  Law is expensive.  Money is something many students and campus groups don’t have.  But if this dispute did get before a judge, the decision would depend largely on the type of claim launched by YPY (or BCCLA).  One the one hand, they may claim that the UVSS’ decision was inconsistent with the Society Act (British Columbia), which governs societies.  On the other hand, they may launch a complaint under the Human Rights Code (British Columbia) before the B.C. Human Rights Tribunal, alleging the UVSS’ course of action constituted discrimination.  If that happens, both sides will likely look at Gray v. UBC Students’ Union, where the court rejected the claim of a pro-abortion group that it had suffered discrimination on the basis of religion.  The court there found that the student group had been shut down because of its offensive conduct and nothing else (but see also this decision).  As well, a court might insist first that YPY exhaust any dispute resolution mechanism available within the UVSS or UVIC before approaching a judge.

Time will tell.

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CAUT granted intervenor status in review of school copyright tariff decision

Paul Brent at the Law Times reported earlier this week that the Canadian Association of University Teachers has been granted leave to intervene in the upcoming judicial review (i.e. appeal) by provincial Ministers of Education of the decision by the Copyright Board of Canada last June, which raised the fees to be paid by schools on copied material to $5.16 per student.  Access Copyright, the victor in the case, claimed “governments were not paying a fair price for the hundreds of millions of photocopies used in schools as substitutes for buying the books.” 

The decision raised many interesting issues related to education and the protection of intellectual property, particularly the debate about the “fair dealing” exception in the Copyright Act (Canada).  The Canadian copyright legal regime, in ultra-brief form, basically works like this:

  • Copyright refers to the exclusive right of the owner to reproduce certain creative expressions, such as songs, plays, novels and so on.  The purpose of this rule is to protect the rights of artists, writer and others, including their publishers and producers, to certain intangible creations that are otherwise easily reproducible.  People have to make a living, and few people will pay you for something they can just get a good copy of for free. 
  • The other side of the coin is that in certain circumstances free reproduction should be permitted and even encouraged.  The largest exception of this sort is called “fair dealing”, which allows copying without the consent of the copyright owner for particular purposes. 

These are some of the relevant provisions of the Copyright Act:

29. Fair dealing for the purpose of research or private study does not infringe copyright.

29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:

(a) the source; and

(b) if given in the source, the name of the

(i) author, in the case of a work,

(ii) performer, in the case of a performer’s performance,

(iii) maker, in the case of a sound recording, or

(iv) broadcaster, in the case of a communication signal [...]

29.4 (1) It is not an infringement of copyright for an educational institution or a person acting under its authority

(a) to make a manual reproduction of a work onto a dry-erase board, flip chart or other similar surface intended for displaying handwritten material, or

(b) to make a copy of a work to be used to project an image of that copy using an overhead projector or similar device

for the purposes of education or training on the premises of an educational institution.

(2) It is not an infringement of copyright for an educational institution or a person acting under its authority to

(a) reproduce, translate or perform in public on the premises of the educational institution, or

(b) communicate by telecommunication to the public situated on the premises of the educational institution

a work or other subject-matter as required for a test or examination.

(3) Except in the case of manual reproduction, the exemption from copyright infringement provided by paragraph (1)(b) and subsection (2) does not apply if the work or other subject-matter is commercially available in a medium that is appropriate for the purpose referred to in that paragraph or subsection, as the case may be. 

You get the idea.  The debate in the tariff decision focused largely on what types of copying generally done by schools falls within the exception of fair dealing.  The Copyright Board sided mostly with Access Copyright and saw much of the copying done by schools to fall outside of the fair dealing umbrella.  This generated a considerable amount of commentary from prominent intellectual property lawyers, including this from Michael Giest, this from Howard Knopf, and this from Sam Trosow.  Here is how is the Copyright Board explained its decision.

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Waivers may be unenforceable, but they often do the trick

A waiver of liability is a scary document for any parent to read.  You are effectively entrusting your child’s safety to someone with whom you agree, in most circumstances, should not be held accountable if something goes wrong.

Enter Wong v. Lok’s Martial Arts Centre Inc., a recent decision of the British Columbia Supreme Court.

The plaintiff in this case was a child who was injured when he was violently thrown to the ground in the course of a sparring match at a martial arts school.  The defendants were the company that owned the school and the individual who owned the company.  The child’s mother alleged that the defendants were negligent, claiming they should have taken certain preventative measures for sparring matches, including screening participants, instructing participants, requiring suitable protective gear or carefully supervising matches.

The defendants, in response, held up a waiver of liability signed by the child’s mother when the child started at the school:


It is expressly agreed that all exercises and treatments, and use of all facilities shall be undertaken by the student’s sole risk. LOK’S HAPKIDO SCHOOL and its affiliated studio’s (Flying Eagle Hapkido, Flying Tiger Hapkido Studio and any other studio’s) shall not be liable for any injuries, past/future medical complications, any claims, demand, injury, damages, actions or cause of actions whatsoever, including without limitation, those resulting from acts of active or passive negligence on the part of Lok’s Hapkido School.


The mother claimed she did not understand the clause and, in any event, knew she had to sign it for her son to attend the school.  The defendants applied to have her claim dismissed.  The thrust of their argument: the clause is valid – a parent is entitled to enter into a contract on behalf of a child to waive that child’s right to bring a claim in negligence.

The court rejected the defendants’ application primarily on the basis that the Infant Act (British Columbia) “does not permit a parent or guardian to bind an infant to an agreement waiving the infant [i.e. minor]’s right to bring an action in damages in tort”.

This statement of law is surprising because waivers of liability are everywhere.  The court hinted at why this is so with a quote from the Law Reform Commission of Manitoba:

Waivers are commonly obtained from minors and their parents.  They may have some practical force in persuading minors that they cannot sue, but their legal validity is doubtful.

At the end of the day, even though these waivers are generally not enforceable, they still have the practical effect of reducing the likelihood of claims because they generally lead parents to assume they signed away rights they might have had if their child gets hurt.  Law is about what people know they are entitled to, not just what might be on the books.  Parents, in particular, should know the difference, and schools should know what they can and can’t rely on to protect themselves from liability.

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Naming (and Un-Naming) Buildings Demands Clear University Policies

Nick Taylor-Vaisey has an interesting article in University Affairs this week, discussing the need for universities to have clear guidelines for placing the name of a philanthropist, corporate donor, politician or former educator on a building or program.  There is also a conversation with Vincent Duckworth, a Calgary-based educational consultant, where the issue is addressed further.

Naming is a tricky business.  Donors are often promised (or demand) a building be named after them or a relative of theirs when they make a considerable donation to an academic institution – I, for one, will never forget the long hours of study at the Nahum Gelber Law Library at McGill University.  For students, administrators and other community-members, a name is generally a cumbersome but innocuous addition to a building or program.  And if it helps make ends meet, all the better.

The challenge comes when the name, for whatever reason, is offensive to some or becomes offensive to all.  I actually met Nahum Gelber (a McGill alumnus) and his wife.  They seemed like nice people.  They gave for my benefit.  I thanked them.  But I would feel pretty odd, twenty years from now, giving a nostalgic campus tour to my son, as we pass the Bernard L. Madoff Department of Finance and stop for lunch at the Conrad M. Black Cafeteria (and imagine the dish they would reserve for David Radler).  Donors have many hats.  Crimes are revealed.  If the name of a convicted offender appears prominently on a campus meeting-place, what is a university to do? 

I was once told of a university south of the border that had accepted a generous donation from one of the key participants in the savings and loan scandal in the 1980s.  Once the news came to light, the university spun into action but was left unsure of what to do: the cost to remove the offender’s name from the building was half of what the offender had actually donated! 

Universities need policies and/or agreements with donors to ensure there are clear and mutually shared expectations about how the university will respond to these issues.

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Universities must clarify ownership of inventions in staff contracts

Where an academic staff member at a university has a eureka moment and produces a fascinating and helpful invention, who holds the rights to that invention – the staff member or the university?

Contrary to my post below regarding copyright, an employee-employer relationship does not result in a presumption that the employer holds rights to the invention.  The applicable rules in Canada were summarized in Techform Products v. Wolda:

  • the federal statute on patents says that an inventor is the first owner of their inventions, but it says nothing about what happens when the inventor is an employee being paid to do research related to those inventions;
  • the mere existence of an employment relationship does not disqualify employees from patenting inventions made during the course of their employment, even where (1) the invention relates to an aspect of the employer’s business, (2) the employee used the employer’s time and materials to bring his or her invention to completion, and (3) the employee has allowed the employer to use the invention while he or she was employed;
  • the two exceptions to the presumption favouring employees are (1) a contract that says the opposite, and (2) where the inventor was employed for the purpose of inventing; and
  • to define the true nature of an employee-employer relationship, the court will usually look at a series of factors, including whether the employee at the time of hiring had previously made inventions, whether the employer had incentive plans encouraging product development, whether the conduct of the employee once the invention was created suggested ownership was held by the employer, and so on.

A recent decision in Australia, which has rules on this issue that are similar to those in Canada, shows how these principles are applied in the university context.  In University of Western Australia v. Gray, the university claimed that it owned the inventions of the head of the Department of Surgery, Gray, who disagreed.  Gray had never explicitly assigned the rights to his inventions.  The university maintained that Gray had implicitly assigned his rights by virtue of the nature of his position.  The Federal Court of Australia sided with Gray and found he had no “duty to invent”.

The key for universities to avoid this mess: have each staff member explicitly assign his or her rights as inventors.  Put it in writing.

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MBAs: “students” or “customers”

The New York Times recently ran an interesting debate about whether business schools should view their enrollees as students or customers.  Although the contributing authors are all at schools south of the border, similar issues apply – the commodification of education, the emerging identity of schools and students,  and the economic concerns of educational institutions.

My sense is that to many educators there is something offensive about the students-as-customers view because it diminishes the overwhelming importance of the purpose behind education at any level and in any form, as if to say: “We’re not just selling you fruit-loops – we’re providing you with fundamental tools with which to understood yourself, the nature of the world, and your role in it.”

But the farther the subject matter of education strays into purely trade-specific terrain, students feel more that they are buying particular tools to generate their future income, as if teachers were manufacturers and students were wholesalers or retailers.  Students feel entitled to what they are receiving from schools and hold high expectations - like any group of customers - especially given the considerable expense.

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Quebec to reform language education law deemed unconstitutional by top court

CBC reported that Quebec’s Liberal government plans to reintroduce legislation to replace Bill 104, which the Supreme Court of Canada ruled over the summer was unconstitutional.  This marks the beginning of another chapter in the ongoing drama surrounding the language of instruction debate in Quebec.

As a very brief history, the linguistic legal battles in Quebec began around the language of legislation and the administration of justice.  Consider section 133 of the Constitution Act:

Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec… The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.

In 1977, the Parti Québécois government of René Lévesque (links to wikipedia) brought in The Charter of the French Language, which defined French as the sole official language of Quebec and created broad language rights for every person in the province, particularly related to commercial signs and the language of instruction for schoolchildren.  During the late 1970s and early 1980s, English-speaking lawyers in Quebec succeeded in having the Supreme Court of Canada strike down certain provisions of the Charter of the French Language as unconstitutional, specifically those dealing with the language of legislation and the administration of justice.

Chapter VIII of the Charter of the French Language deals with the language of instruction and includes in s. 73 criteria enabling certain children to receive education in English.  After the advent of the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada, in Quebec (AG) v. Quebec Protestant School Boards, ruled that some of the provisions contained in the original version of s. 73 were unconstitutional.  The provincial government revised the eligibility criteria, and in Gosselin v. Quebec (AG) the Supreme Court of Canada held that those revised criteria were constitutionally valid.  Section 73 now reads as follows:

The following children, at the request of one of their parents, may receive instruction in English:

(1) a child whose father or mother is a Canadian citizen and received elementary instruction in English in Canada, provided that that instruction constitutes the major part of the elementary instruction he or she received in Canada;
(2) a child whose father or mother is a Canadian citizen and who has received or is receiving elementary or secondary instruction in English in Canada, and the brothers and sisters of that child, provided that that instruction constitutes the major part of the elementary or secondary instruction received by the child in Canada;
(3) a child whose father and mother are not Canadian citizens, but whose father or mother received elementary instruction in English in Québec, provided that that instruction constitutes the major part of the elementary instruction he or she received in Québec;
(4) a child who, in his last year in school in Québec before 26 August 1977, was receiving instruction in English in a public kindergarten class or in an elementary or secondary school, and the brothers and sisters of that child;
(5) a child whose father or mother was residing in Québec on 26 August 1977 and had received elementary instruction in English outside Québec, provided that that instruction constitutes the major part of the elementary instruction he or she received outside Québec…

Bill 104 was enacted to tighten the loopholes used by some parents to squeeze their children into the English school system.  In October of this year, the Supreme Court of Canada ruled in Nguyen v. Quebec (Education, Recreation and Sports) that Bill 104 is unconstitutional.  This recent announcement by the provincial government will continue the debates carried out in these decisions.

A footnote for those unfamiliar with Quebec linguistic politics: a language law remains a “Bill” in public discourse among English publications in Quebec because even after it is passed it is hotly contested.

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