Employers must tread carefully when trying to protect educators from online attacks
An educator’s workplace involves constant exposure to reputational hazards. Teachers and professors spend their days in front a generation of students committed to broadcasting their opinions, thoughts and whims about anything and, more importantly, anyone across the indelible medium of the internet. For professors, in particular, their students are often using their laptops in class, discreetly maintaining their active online social lives and standing ready and willing to comment to anyone who will listen about any particular component of a professor’s presentation, among other things.
Schools, universities and other educational institutions are increasing concerned about how easy, and how common, it is for students to use the internet as a tool to defame, harass and otherwise manipulate their educators by careless, disrespectful or malicious online activity. Students nowadays use the internet and related technologies the way students used to use, well, nearly everything. Passing notes is now texting. Doodled pictures can be posted on facebook. Rumors are spread by student blogs, not whispered at lunch tables.
In this context, it is tempting for employers to take any and all steps necessary to spare their employees from an online assault. In the recent case of Windsor-Essex Catholic District School Board & Seguin v. Lentini et al, 2010 ONSC 6364 (see here foran excellent analysis of the case by Shibley Righton LLP), a principal and a school board were awarded damages and costs in relation to harmful comments posted by a student on facebook. The principal had made an unpopular decision abouta school hockey team, and disgruntled students and parents began voicing their frustrations on facebook. Those comments quickly devolved into juvenile accusations that the principal had engaged in pedophilia.
The school board stepped in and sent notices of defamation to all offending individuals, nearly all of whom retracted their comments. One former students who had posted most of the comments refused to comply. The school board then commenced an action in defamation against the student, which was successful.
In contrast, the recent case of Pridgen v. University of Calgary (CanLII) demonstrates the failure of an educational institution to respond appropriately to online comments about an employee. The plaintiffs were twin brothers who had both taken a course with an unpopular professor and were dissatisfied. The brothers each posted comments on facebook about the course and the professor; the comments were childish and disrespectful but not necessarily defamatory. The professor saw the comments and complained to her superiors. Subsequently, internal university bodies found the brothers had committed non-academic misconduct, placing them each on probation.
The brothers applied for judicial review on the basis that the disciplinary measures taken against them violated their right to free expression under the Canadian Charter of Rights and Freedoms. The Alberta Court of Queen’s Bench agreed that the university had in fact violated the brothers’ right to free expression, acknowledging that online comments by students about the quality of their education should be encouraged within reasonable limits. Additionally, the Court noted that if the professor had felt defamed she could have commenced an action in defamation against the brothers, an option that neither she nor her employer pursued.
Educational institutions seeking to protect the reputation of their employees must accept that imposing disciplinary measures against students who post critical comments is not necessarily the appropriate response. While such measures might have been imposed in Pridgen in an attempt to prevent the nature of the comments from taking a turn for the worse, those comments had not passed the threshold required to justify the university’s response.