Posts tagged facebook

How educational institutions should respond to the riot

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A week after the Stanley Cup game seven loss and the riot that followed, Vancouverites are thinking less about how our boys in blue were thumped by the Bruins and more about how our cityscape was bruised by the rioters.  In terms of our pride as a city, the game pulled the rug out from under us, but the riot flat out beat us senseless, prompting the inevitable soul-searching and finger-pointing that happens when any group is shocked by the depravity of some of its members.

The most interesting thing about the past week (and to think, it’s only been a week) was not the violence itself, the response from the police or city officials or the identities of the rioters.  Far and away, it has been the role of social media and, particularly, how the prevalence of cameras (primarily on cellphones) mixed with the unrestrained ability for anyone to reproduce pictures and videos at little or no cost has produced severe, and often legal, consequences for anyone mixed up in the riot.  (Paradoxically, as Kent-Daniel Glowinsky pointed out in yesterday’s Vancouver Sun, in the age of Facebook often the most damning evidence is offered up by the law-breakers themselves, foolishly unaware that they are signing their own criminal confessions.)

The most prominent example of those that have been crucified by social media is Nathan Kotylak (Globe and Mail), the 17 year-old water polo star from Maple Ridge who was caught on camera during the riot trying to blow up a police car.  Kotylak has apologized profusely.  The implications for him and his family have been dire: they have had to leave their home because of threats, and his father – a surgeon – has had his professional reputation tarnished.  Kotylak is just finished grade 12 at Meadowridge High School, though he did not attend his graduation ceremony (the Province).  He was suspended from Canada’s junior water polo squad and it’s unlikely his school has taken any steps in response.

Another student spotlighted by the media is Camille Cacnio (the Ubyssey), a biology student at the University of British Columbia.  She has not gone to the same extent as Kotylak to publicize her apology and regret (though, arguably, the crime she committed was not as obscene and she may simply have not been as appealing to news agencies), but similar issues will be plaguing her, perhaps even more so because of the racial element in much of the online chatter about her.  UBC officials have said pretty definitely that since the riot did not happen at UBC and there was no material connection to UBC, they will not be getting involved.

Employers (Vancouver Sun) have an important decision to make about how to treat employees involved with the riot.  A person who commits a crime should not necessarily be fired from their job unless there is some significant connection between the crime and the job or unless that sort of thing is covered by their employment agreement.  The decision for education institutions is far more complex: should they take any steps against students who participated in the riot?

There are a couple of factors to consider:

  1. Teenagers vs. Adult.  High schools should approach the riot differently than universities should.  Nowadays, a teenagers caught committing a crime during a highly publicized event will likely be getting it from all sides: their family and friends will probably be furious with them and feel the effects themselves; the riot will probably show whenever their name is googled for the next decade or so (unless they happen to do something even more noteworthy, good or bad);  they will have to explain themselves and apologize at interviews, etc. until they are old enough to have their own kids in high school… the list goes on.  University students will probably go through the same, with even greater concern for their professional opportunities, but the chatter will likely affect teenagers in a more acute way because their identities and self-esteem may be more brittle.  High schools are probably best served by using the riot as an educational opportunity, and they should keep in mind that the reactions (or over-reactions, as the case may be) to a crime can be more damaging than the crime itself.  Of course, if they think it’s appropriate to take disciplinary steps against a student, they should keep in mind the legal implications of doing that.
  2. The Campus Connection.  UBC officials hit the nail on the head by emphasizing that offenders are being pursued, students and non-students alike, and since there appears to be no material campus connection there is nothing that the university itself should do.  Educational institutions are not parents.  A student has many identities, and in this case the fact that a rioter also took classes at a certain school may be incidental to what happened.   Schools and universities are concerned, but it’s not their problem any more than it is the problem of other local institutions and businesses.   Students can get arrested or have criminal records, but as long as it is unrelated to their role as a student there is generally no need for the school to intervene.   The question may get more complex if unique facts are involved, such as if university property located downtown (I am thinking of buildings belonging to UBC or Simon Fraser University) was damaged during the riot by students of those universities or if one student hurt another, and so on.

Teachers or professors rioting is a whole other ballgame, and in that case the factors to consider are more employment-related than anything else.

There are many lessons, legal and otherwise, that we can all take from the riot depending on our roles in society and our connection to the city.  Above all, it’s not only about the law.  What will prevent the next riot from happening, and accomplish the most to address the fallout from this one, will come from our internal sense of community or parental obligations and how they should be applied in these and similar circumstances.

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Employers must tread carefully when trying to protect educators from online attacks

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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.

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Students gone facebook stupid: nursing students reprimanded, then vindicated, for posting placenta picture

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How would you feel if the nurse helping your wife through labour and delivery had just before finishing nursing school posted a photo of herself on Facebook posing and smiling broadly while holding a human placenta?

In yet another example of students going Facebook stupid, four students who posed for photos with a placenta were reportedly (insidehighered) kicked out of their suburban Kansas City nursing program at after one of the photos was posted on Facebook.  The students were attending a lab course at Olathe Medical Center when one asked the nursing instructor for permission to take pictures with the placenta to be shared on Facebook, which is exactly what they did.   The instructor denies the students asked for permission to post the pictures on Facebook.  The posted photo does not identify the woman from whom the placenta came.

Several hours after the photo was posted, the nursing instructor called the student who posted it and asked her to remove it, which she did immediately.  The four students were each expelled from the program the next day (or, more correctly, were kicked out and asked to reapply for the program this summer), and one of them started a lawsuit to force the school to readmit her immediately.  Here is a link to legal documents filed on behalf of the student.  Here is the press release with an explanation from Johnson County Community College, which includes a quote from the plaintiff’s letter of apology admitting she “should never have posted the photograph”.

Her claim went before a federal judge, who ruled (Huffington Post) against the college and noted that “I’m an uptight guy and I’m not offended [by the picture]“.   He focused on the fact that the particular mother was not identifiable, that there was implied consent by the instructor and that the school’s response was overkill, which denied the student due process.

Most of the opinions on these events involve criticism of the school.  Here is an interesting comment from blogger Eric Stoller (insidehighered):

I wonder if students at JCCC are taught how to use social media sites like Facebook in a manner that is respectful, ethical, and appropriate in terms of patient confidentiality. Posting and sharing all aspects of our daily lives via social media has become an accepted norm. As with most disciplines, students are not always inherently aware of what is and is not right. We have to teach them, not overly punish them when they make mistakes.

This story, which has been big in the news south of the border, raises issues about free expression of students and the power of educational authorities to take action against students for non-academic off-campus behavior.  My guess is that judges will eventually frown upon students arguing that schools should stay away from their online profiles, when those profiles are so easily accessible and the material posted there may be inflammatory and linked to the schools.  The Pridgen decision (see posts here and here) involving the University of Calgary is one example of a recent case that universities are looking to in an attempt to figure out what their response should be to Facebook posts by students that involve their educational experience.

There are several lessons, among others, that can be taken away from this story:

  • Privacy Is Dead, and You Killed It:  Students have to treat Facebook as a professional and educational hazard.  No matter who broad or narrow your class of “friends”, students should expect that anything they post anywhere on the internet may eventually be quoted in major news media.  It may also be taken (or mistaken, as the case may be) by an educational institution or employer as a reason to adopt certain measures against you.  Courts, like in the Pridgen decision, show an appreciation for the nature of interaction and communication on social media (i.e. it’s not exactly Oscar Wilde’s greatest hits), but if you do not want to attract attention, do not show your underwear, so to speak, in the public domain.
  • Students Are in for the Long Haul:  Courts understand that actions by educational institutions can severely impair a student’s ability to earn a livelihood, particular when the internet makes any incident – no matter that the context – almost impossible to keep off the radar of potential future employers.
  • Consider the Legal and Non-Legal Sides of Things:  The college may have overreacted and thus violated the student’s rights, but that doesn’t mean 10 years from now a smartphone-carrying mom-to-be in labour googling the names of attending nurses and physicians (I’ve seen it happen!) will be pleased to learn about these sorts of Facebook hijinks.

We – lawyers, academics, everyone! – are still trying to come to grips with the new reality imposed on us and what that means in terms of our rights and obligations.  If you want to stay out of trouble, tread carefully.

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University of Calgary appeals facebook charter decision

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The Globe and Mail reported over the weekend that the University of Calgary has filed an appeal regarding a recent decision (CanLII) of the Alberta Court of Queen’s Bench that found that the university had violated the rights of two students under the Canadian Charter of Rights and Freedoms by punishing them for criticizing a professor on facebook.  For a comprehensive review of the decision, please see here.

In an article by the Toronto Sun, University of Calgary spokesperson James Stevenson said the purpose of the appeal was not to further punish the students but rather:

[to seek] clarity on the extent to which the Charter applies to its own operations and those of other post-secondary institutions in Canada… As such, the reason for filing the notice of appeal goes well beyond the specific individuals involved… Filing the notice to appeal allows the university more time to study the decision, and how it fits with other similar cases currently before the courts in other Canadian jurisdictions.

Jacob Serebin opined in his blog on Macleans OnCampus that at the moment “no one outside Alberta has any idea how the charter applies to their university” and he welcomes an appeal for the sake of clarifying some of the more ambiguous comments of the court regarding the scope of the Charter’s application.  He writes:

That’s why I’d like to see this case go to appeal. When it comes to these sorts of decisions, appeals courts tend to clarify and think about how their ruling will impact similar cases that lower courts will see in the future, not just the one in front of them.

Consider the following comments by the court in the Pridgen decision:

While the hiring and firing of employees by a university is non‑governmental in nature… the disciplining of students and the placement of restrictions on a student’s ability to exercise his or her freedom of expression in the context of pursuing an education at a public post‑secondary institution is altogether different. In order to successfully attend the University, students are compelled to adhere to its rules and policies. The regulation of freedom of expression as a condition of attendance cannot be properly classified as day‑to‑day operations [i.e. it is more likely to be governmental in nature].

…The Charter does apply in respect of the disciplinary proceedings taken by the University against the Applicants pursuant to the PSL Act…. [The] source of the alleged Charter violation is the conduct of the University as opposed to the legislation itself. While the University is free to construct policies dealing with student behavior which may ultimately impact access to the post-secondary system, the manner in which those policies are interpreted and applied must not offend the rights provided under the Charter.

These comments appear to draw lines in the sand around what spheres of university conduct are subject to the Charter.  Treatment of employees: no.  Disciplinary measures imposed because of student conduct: yes.  But some further clarification would be helpful.  

The students’ lawyer told the Calgary Herald that before this case the general impression among the legal community was that the Charter did not apply to universities, even though courts have never said that in such absolute terms.  That’s true – it just so happens that all the decisions involving charter claims against universities have been rejected or have never properly addressed the issue.  The decision turned some heads and serves as a landmark case but at the end of the day it simply fit within a neatly set out conceptual window created by the courts, where the right facts finally came along to demonstrate what type of university activities of an autonomous institution will be subject to the Charter.  

Let’s see what the Alberta Court of Appeal has to say.

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Does the Charter apply to universities?

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University administrators raised their eyebrows this week to news of the decision of the Court of Queen’s Bench of Alberta in Pridgen v. University of Calgary (CanLII), specifically the declaration of the Honourable Madam Justice Strekaf that the university is “not a Charter-free zone”. 

The case (which was previously discussed in this post) involves separate statements by University of Calgary students Steven and Keith Pridgen – identical twins – on a facebook wall entitled “I NO Longer Fear Hell, I Took a Course with Aruna Mitra”.   One comment mused about whether Professor Mitra “got lazy and gave everybody a 65″ while the other celebrated her departure and alleged she lied about being a “long-term professor”.  Professor Mitra complained.  The Interim Dean of the Faculty of Communication and Culture determined that the ten students who contributed to the wall, including the Pridgens,  had committed non-academic misconduct and should be sanctioned.  Keith Pridgen was advised that he was placed on probation for two years with certain other conditions and Steven Pridgen was mainly required that he write an unqualified letter of apology to Professor Mitra but no probation was applied.  Letters from the Interim Dean maintain that the statements have caused “unwarranted professional and personal injury” to Professor Mitra and satisfy the criteria for non-academic misconduct.  (The Statement of Principles of Conduct in the University Calendar defines non-academic misconduct to include “conduct which causes injury to a person”.)

The twins appealed the sanctions to the General Faculties Council’s Review Committee, where they were unsuccessful in quashing the Interim Dean’s decision and instead were given a six- and four-month probation respectively.  They went a step further to the university’s Board of Governors, but they were rebuffed.

The first issue the court considered was whether the Charter applied to the disciplinary actions taken by the university.   The Pridgens alleged that the university’s position infringed their rights under the Charter of freedom of expression and association.  In contrast, the university argued that the Charter only applies to government institutions, which the university is not, despite being a creature of statute that performs a public service.

The essential source for determining whether the Charter applies to an entity is the Charter itself at section 32(1):

This Charter applies:

(a)  to the Parliament and government of Canada in respect of all matters within the authority of Parliament…; and

(b)  to the legislature and government of each province in respect of all matters within the authority of the legislature of each province [which includes education].

But does the term “legislature and government” include universities?  There have been several significant decisions of the Supreme Court of Canada since the advent of the Charter that  interpret this provision.  The initial guiding light came in RWDSU v. Dolphin Delivery Ltd. (CanLII), where the issue was whether secondary picketing in a labour dispute is protected as freedom of expression under the Charter.  The most relevant point of the decision is that the court held that the Charter applies to “government action” and not to “private activity”.  More importantly, the court implied that the Charter might apply to “creatures of Parliament and the Legislatures”.

Several years later, the Supreme Court of Canada released a series of decisions dealing with claims of Charter infringements by universities and hospitals.  In McKinney v. University of Guelph (CanLII), the issue was whether mandatory retirement policies of several universities infringed the right to equality under the Charter.  The claimants asserted that the Charter applied because the universities were creatures of statute intended to carry out a public service of providing education – i.e. they are essentially degree-granting companies incorporated by acts of provincial legislatures to complete a government objective.  The court held that the Charter did not apply because the universities were not part of the government apparatus; they are legally autonomous and are not organs of government despite their dependence of government funds.  The fact that the universities were incorporated by statute or carry out a government objective does not make them part of government.  (A similar decision was rendered that year, but the court found there that the Charter in fact applied because of greater control by government in university affairs.)

Significantly, the Honourable Mr. Justice La Forest ruled that the origins or purpose of an entity are not alone sufficient to render it subject to the Charter, but rather courts should look to the degree of involvement or influence of government in a given activity that gives rise to a Charter claim to determine whether the Charter applies.  Nonetheless, he did not shut the door to the Charter possibly applying to universities, but left in place a “control test”.  The Honourable Madam Justice L’Heureux-Dube concluded in a separate decision that while certain functions of universities could be subject to the Charter, the activity of hiring and firing employees is not.

The court’s view was clarified in Eldridge v. British Columbia (CanLII), where deaf claimants argued that the failure of the province to provide sign language interpreters as an insured benefit under the Medical Services Plan violated the right to equality under the Charter.   In defining the scope of the Charter’s application, the court (in a unanimous decision) approached the issue from the perspective that legislatures cannot escape their constitutional responsibilities under the Charter by delegating the implementation of their policies to otherwise private entities.  As a result, for the Charter to apply either the private entity in its entirety must be considered to be “government” (i.e. based on the degree of governmental control exercised over it as an organization, it is clearly an organ of government) or the particular activity at issue must be considered to be “government” (i.e. the implementation of a certain government program) even though other activities of the private entity (e.g. hiring and firing employees) are not.

In McKinney, the court declared that the statutes of the universities did not show them to be organs of government, given the degree of autonomy they were granted to manage their affairs without government intervention.  In Pridgen, the court reached the same conclusion about the University of Calgary, but noted that it is implementing a specific government policy:

The University is tasked with implementing a specific government policy for the provision of accessible post secondary education to the public in Alberta… The structure of the PSL Act [i.e. the statute governing the University of Calgary] reveals that in providing post‑secondary education, universities in Alberta carry out a specific government objective. Universities may be autonomous in their day‑to‑day operations… however, they act as the agent for the government in facilitating access to those post‑secondary education services contemplated in the PSL Act

While the hiring and firing of employees by a university is non‑governmental in nature as seen in McKinney, the disciplining of students and the placement of restrictions on a student’s ability to exercise his or her freedom of expression in the context of pursuing an education at a public post‑secondary institution is altogether different. In order to successfully attend the University, students are compelled to adhere to its rules and policies. The regulation of freedom of expression as a condition of attendance cannot be properly classified as day‑to‑day operations.

I am satisfied that the University is not a Charter free zone. The Charter does apply in respect of the disciplinary proceedings taken by the University against the Applicants pursuant to the PSL Act. As in Eldridge, the source of the alleged Charter violation is the conduct of the University as opposed to the legislation itself. While the University is free to construct policies dealing with student behavior which may ultimately impact access to the post-secondary system, the manner in which those policies are interpreted and applied must not offend the rights provided under the Charter.

After concluding that the Charter applied, the court continued to address the content of the students’ expressions:

I do not regard this particular kind of expression as being of little value. Students should not be prevented from expressing critical opinions regarding the subject matter or quality of the teaching they are receiving. As an educational institution, the University should expect and encourage frank and critical discussion regarding the teaching ability of professors amongst students, even in instances where the comments exchanged are unfavourable. While certain of the comments made about Professor Mitra were not particularly gracious and might have reflected a lack of maturity, the Facebook Wall does have utility as a forum of discussion. The commentary may assist future students in course selection as well as provide feedback to existing students and perhaps reassurance that one is not alone in finding that they are having difficulty appreciating instruction in a particular course. If Professor Mitra was concerned that she was being defamed, then she could have brought a civil action.

Although this decision has surprised many who presumed that the Charter does not apply to university decisions – period – Strekaf J.’s take on certain university activities being subject to the Charter, but others not, has been raised before.  In Blaber v. University of Victoria (CanLII), a computer science student used an email account supplied by the university to send a message to a listserve and addressed to a student politician accusing her of incompetence (or worse) and quoting a passage from the Book of Ezekiel involving “vengeance” (ala Pulp Fiction).  The student politician complained and argued the email breached a university harrassment policy.  The university responded on that basis by threatening to shut off the account.  The student commenced a law suit and maintained that this threat from the university violated his Charter right to freedom of expression.  The Honourable Mr. Justice Owen-Flood of the Supreme Court of British Columbia considered whether the Charter applies to the harrassment policy and referred to the following comment by Sopinka J. in McKinney:

[I] would not go so far as to say that none of the activities of a university are governmental in nature.

The court’s discussion on this issue in Blaber is obiter but it does highlight that McKinney should not be used to assert as a blanket rule that the Charter does not apply to universities, even those universities that pass a “control test”. 

For this reason, the decision in Pridgen may turn some heads and serve as a landmark case but at the end of the day it simply fits within a neatly set out conceptual window created in McKinney, where the right facts finally came along to demonstrate what type of university activities of an autonomous institution will be subject to the Charter.  (In my research for this post, I was unable to find a decision where a court found that the Charter applied to such a university.)

Ultimately, the court’s decision may reflect its view of the offensiveness of the university’s conduct.  Apparently, University of Calgary officials have not yet indicated whether they will file for appeal.  In any event, universities should take the time to evaluate their governing statutes and consider which areas of its affairs may be subject to the Charter and what changes, if any, should be adopted as a result.

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The power and perils of social media

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Everything we use or consume regularly has an incredibly powerful impact on our lives.  Some of these things we simply take for granted or see as essential, which lets them form part of the framework of daily living rather than be appreciated as accessories or novelties (e.g. coffee, email, cell–phones, etc.).  These things either have significance each time they sit in front of us or in our hands, as the case may be, but at the very least they impose a cumulative consequence on our bodies and our identities.  Quietly, they carry out a revolution.

We constantly remind ourselves of the advantages that come from these items.  Smartphones let us work from anywhere.  Coffee keeps us alert even though our kids took turns waking up their parents all night.  And so on.  But, occasionally, events occur that make us pause to consider their larger impact, including the harm they may be causing us. Email makes it easier to keep in touch with family, but have we lost something by speaking to them less?  Does facebook let us have more “friends” but fewer meaningful relationships that can be relied on to add substance to our lives?  Does the internet give us access to more information but make it more difficult to learn and retain new knowledge?  Does coffee make us more productive but less relaxed?  What exactly are we losing in exchange for what we’ve gained?

The rates of use of social media, like facebook, are astounding, particularly among children.  These sites have imposed a fundamentally unique social context to their upbringings, which is entirely different from what their parents and grandparents had to deal with.  Here are some of the hallmarks of this new reality:

  • Personal branding has become a major concern and, more significantly, requires a considerable logistical investment.  Your image isn’t confined to the clothes you wear on a given day, what you say in class or, generally, what you do.  How others see you is largely determined by how you appear on the virtual playground – that is, your status updates, your wall, etc. and the other personalized bells and whistles on social media sites.  These sites hand each child a megaphone to project themselves, and because of social pressures they can’t use it in a neutral way.
  • Images are everywhere and are easily reproduced and transmitted.  I remember the worst thing a friend could do was record a conversation without telling you and catch you saying embarrassing things.  Now at any moment anyone can take a picture of you and have a copy of it in front of hundreds of your classmates and friends in a matter of seconds.

It’s obvious that these raise social, and perhaps psychological, questions about the effects of these factors on children.  But they also raise legal questions.  Widespread social phenomona like this one can create a legal reality that should be addressed. 

What sparked this concern in me this week was news over the weekend about a gang rape in Pitt Meadows last Saturday night, photos of which were posted on facebook.  Here is an excerpt from a report by the Vancouver Sun:

[A] 16-year-old boy was arrested on Tuesday for photographing the assault and uploading the photos to Facebook. He is expected to face charges of distributing child pornography but those charges have not yet been laid. Photographs of the girl’s assault were shared on Facebook and are “spreading like wildfire” on the Internet according to police.

At a news conference in Maple Ridge on Friday, Lench said police have been in touch with Facebook about keeping the photos off its system and are also working with the Ministry of Education to prevent the spreading of the photos on school computers.

 Lench said police believe the message is getting out that possession of the photos is a crime — possession of child pornography — and parents are pressuring their kids to stop sending the photos around.

I am not arguing that facebook is the cause of gang rape or anything like that, but it is definitely a tool that has been used in this instance to facilitate a crime.  Here is another article in the Sun discussing the challenges being faced by police to prevent re-victimization by distribution of the photos. 
 
Janet Steffenhagen of the Vancouver Sun reported on her blog this morning that Vancouver trustee Mike Lombardi has urged schools to teach students about the proper use of social media:
One of the initial reactions of the educational community was to pretend social media doesn’t exist and ignore it,” Lombardi said. “Schools can’t do that any more.”
The issues surrounding this event should be studied from a legal perspective, not simply social or psychological ones, to determine what role, if any, can be played by the law.  Encouraging a policy on social media in schools, as Lombardi suggests, is one step forward, but we will need to continue to seek innovative measures to address this.
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How should school administrators respond to cyberbulling?

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There was an interesting article by Jan Hoffman over the weekend in the New York Times discussing the legal implications of cyberbulling, particularly for schools and parents.  There may be certain variations in the legal tests that apply in the United States and British Columbia but I think the article is important because it explores the sociological phenomenon of cyberbulling and how it is being treated by lawyers and judges. 
 
One issue to consider is whether cyberbulling is more likely to result in litigation than ”traditional” bullying and, if so, why that is the case. As well, cyberbullying raises the common question for schools about the limits of their jurisdiction and whether (or to what extent) schools are responsible for off-campus activities of students.
 
The article is fairly long, and I reproduce below the portion dealing with legal battles arising from cyberbulling.

Tony Orsini, the Ridgewood principal, learned about a devastating Facebook group last November, two months after it started.

“I had a 45-year-old father crying in my office,” Mr. Orsini said. “He kept asking, ‘Why would someone do this to my son?’ ”

A Facebook page had sprung up about the man’s son, who was new in town. The comments included ethnic slurs, snickers about his sexuality and an excruciating nickname. In short order, nearly 50 children piled on, many of them readily identifiable. “Kids deal with meanness all the time and many can handle it,” said Mr. Orsini, 38, a father of two children. “But it never lasts as long as it does now, online.”

The boy could not escape the nickname. At soccer and basketball games around town, opposing players he’d never met would hoot: “Oh, you’re that kid.”

The boy began missing school. He became ill. After weeks, he reluctantly told his parents.

“We don’t always get to address these problems until the damage is done,” Mr. Orsini said.

Because the comments had been made online and off-campus, Mr. Orsini believed that his ability to intervene was limited.

Rulings in a handful of related cases around the country give mixed signals.

A few families have successfully sued schools for failing to protect their children from bullies. But when the Beverly Vista School in Beverly Hills, Calif., disciplined Evan S. Cohen’s eighth-grade daughter for cyberbullying, he took on the school district.

After school one day in May 2008, Mr. Cohen’s daughter, known in court papers as J. C., videotaped friends at a cafe, egging them on as they laughed and made mean-spirited, sexual comments about another eighth-grade girl, C. C., calling her “ugly,” “spoiled,” a “brat” and a “slut.”

J. C. posted the video on YouTube. The next day, the school suspended her for two days.

“What incensed me,” said Mr. Cohen, a music industry lawyer in Los Angeles, “was that these people were going to suspend my daughter for something that happened outside of school.” On behalf of his daughter, he sued.

Last November, Judge Stephen V. Wilson of Federal District Court found that the off-campus video could be linked to the school: J. C. told perhaps 10 students about it; the humiliated C. C. and her mother showed it to school officials; educators watched it and investigated.

But the legal test, he wrote in his 57-page decision, was whether J. C.’s video had caused the school “substantial” disruption. Judge Wilson ruled in favor of the young videographer, because the disruption was only minimal: administrators dealt with the matter quietly and before lunch recess.

This legal test comes from a 1969 Supreme Court case, Tinker v. Des Moines Independent Community School District, in which a school suspended students for wearing black armbands to protest the Vietnam War.

The court overturned the suspension, but crafted a balance between a school’s authority and a student’s freedom of expression. When a student’s speech interferes substantially with the school’s educational mission, a school can impose discipline.

The district had to pay J. C.’s costs and lawyers’ fees: $107,150.80.

Judge Wilson also threw in an aside that summarizes the conundrum that is adolescent development, acceptable civility and school authority.

The good intentions of the school notwithstanding, he wrote, it cannot discipline a student for speech, “simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over hurtful comments.”

The lesson Mr. Cohen hopes his daughter learns from the case is about the limits on governmental intrusion. “A girl came to school who was upset by something she saw on the Internet,” Mr. Cohen said in a telephone interview, “and these people had in their mind that they were going to do something about it. The school doesn’t have that kind of power. It’s up to the parents to discipline their child.”

He did chastise his daughter, saying, “That wasn’t a nice thing to do.”

He describes her video as “relentlessly juvenile,” but not an example of cyberbullying, which he said he did not condone. His daughter offered to remove it from YouTube. But Mr. Cohen keeps it posted, he said, “as a public service” so viewers can see “what kids get suspended for in Beverly Hills.”

The J. C. decision has ignited debate. Nancy Willard, an Oregon lawyer who consults with schools, said that the judge could have applied another, rarely cited prong of the Tinker standard: whether the student’s hurtful speech collided with “the rights of other students to be secure.”

The Supreme Court has not yet addressed online student speech. Lower-court judges in some districts have sided with schools that have disciplined students for posting threatening videos about educators from their home computers.

In two recent cases, students were suspended for posting parodies of their principals. Each case reached the Court of Appeals for the Third Circuit. But one three-judge panel sided with a school for disciplining a student whose site suggested the principal was a pedophile; another panel sided with its case’s student, whose site suggested the principal used steroids and smoked marijuana. To resolve the contradictory rulings, both cases were re-argued earlier this month before 14 judges on the Third Circuit, whose jurisdiction includes New Jersey, Delaware, Pennsylvania and the United States Virgin Islands.

Nationwide, principals have responded to students who demean others online in dramatically different ways.

In January, 28 Seattle middle school students who wrote noxious comments on Facebook about one student received suspensions. The school also held assemblies about digital citizenship.

But when the mother of a seventh-grade boy in Fairfax County, Va., who requested anonymity to protect her son’s identity, sent his principal the savage e-mail messages and Facebook jeers that six boys posted about her son, the principal wrote back that although the material was unacceptable, “From a school perspective this is outside the scope of our authority and not something we can monitor or issue consequences for.”

Many principals hesitate to act because school discipline codes or state laws do not define cyberbullying. But Bernard James, an education law scholar at Pepperdine University, said that administrators interpreted statutes too narrowly:

“Educators are empowered to maintain safe schools,” Professor James said. “The timidity of educators in this context of emerging technology is working to the advantage of bullies.”

Whether suspension is appropriate is also under discussion. Elizabeth Englander, a psychology professor at Bridgewater State College in Massachusetts and founder of the Massachusetts Aggression Reduction Center, believes that automatic discipline for cyberbullies is wrong-headed.

“We tend to think that if there’s no discipline, there’s no reaction,” she said. “But discipline should never be the only thing we consider in these cases. There are many things we can do with children first to guide and teach them about behavior and expectations.”

Tony Orsini wanted to help his middle school student who was being teased mercilessly on Facebook. But he believed he had to catch the bullies at school.

He alerted teachers. At lunch, they spotted the three ringleaders as they forced the boy from their table.

“I called them into my office,” Mr. Orsini said, “and talked to them strongly about the lunchroom incident. Then I lied. I said I heard that the cops were looking at a Facebook group they had posted.

“It came down the next day.”

He rubbed his face in his hands. “All we are doing is reacting,” he said. “We can’t seem to get ahead of the curve.”

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University of Calgary facebook reprimand reaches judicial review

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The latest facebook-got-your-tongue litigation making  national headlines (Vancouver Sun) popped up this week from the University of Calgary, where twins – both students – were placed on probation two years ago for stinging comments they made in November 2007 about a professor on a facebook page entitled “I no longer fear Hell, I took a course with [the Professor's name]“.  The comments on the site include suggestions that the professor “got lazy and gave everybody a 65″. 

The professor complained to the interim dean that this was an assault on the professor’s reputation, and the interim dean determined that the twins had used facebook to commit non-academic misconduct and handed down a penalty accordingly.  The Board of Governors declined to hear an appeal of the decision and grant them a formal hearing.  The twins are now seeking judicial review before the Court of Queen’s Bench in Alberta.  Arguments before the court began this past Friday and were adjourned to another date.

The university maintains that the twins made unsubstantiated allegations that violated the school’s student code of conduct.  No formal hearing was required given the nature of the penalty handed down.  In contrast, the twins claim they wrote nothing wrong and the university’s actions smack of procedural unfairness.  The university is trying to place a muzzle on legitimate criticism of professors.

This is a sad picture for a number of reasons:

  1. The university appears to have done a miserable job of explaining its position in the court of public opinion.  While the demands of journalists to write short, punchy news pieces on a tight deadline means that much of the essential facts may get chewed up in the process, there does not seem to be any clear response by the university to several basic questions.  By what authority did the school punish the twins for comments they made online in a non-academic forum?  How broad is this power and how else has it been used?  Does the university consider the comments to be defamation or a milder form of wrongdoing that nonetheless violated the student code?  What sort of online criticism of professors is permitted under the code?  You cannot control how much of your side of the story the media decides to tell, but you better use any resources you have to stream it into the marketplace.  The U of C website showed no recent press release asserting its view of the matter.
  2. The twins are in the uneasy position of having to justify publicly why they made seemingly juvenile comments that have likely impacted the professor’s livelihood in a meaningful way.  Many students use facebook the way baby boomers, in their student days, used – well – talking.  Students have traditionally made fun of unpopular professors and criticized them unfairly, but usually only in a somewhat private setting – students nowadays would never dream of splashing those comments across the national media, which is exactly what has happened in this case.  As much as the university has to justify its response to the comments, the twins have to defend the comments as legitimate.

The best advice I have ever heard about making online commentary is never post anything that you would not want to see appear after your name on the front page of a major newspaper.  Facebook has entered the courtroom in many ways, particularly to the detriment of student users.  For example, in MacIntyre v. Pitt Meadows Secondary School (CanLII), a recent decision of the Supreme Court of British Columbia involving a student’s claim for compensation for an injury suffered in shop class, the court relied heavily on photos posted on facebook as evidence showing the student shortly after the accident being physically and socially active.

Students have the freedom to criticize their professors in public, but it has never been easier for those comments to cross the line into something more troublesome and they must be aware not only of the rules surrounding a tort like defamation but also the rules of the school they attend that form part of their educational contract.  School administrators must establish policies governing this new venue for commentary.  Although it is difficult to glean from the media reports enough information to draw concrete conclusions in this case, universities – in Alberta, British Columbia and the rest of Canada – are looking to a court decision arising from the University of Calgary’s travails that will provide further guidance in setting the appropriate course.

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Using social media to improve, not impair, your prospects

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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

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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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