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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