30 minute presentation to canadian university solicitors on social media issues.

1. Social Media – Issues and Trends
CAUS 2014 Academic Program
September 19, 2014
Dan Michaluk

2. Outline
• Student expression, policy and law
• Gathering social media evidence
• And I'll leave you with
• Other issues and trends
• Case law citations
CAUS 2014

3. Student expression, policy and law
• In a survey of the non-academic codes of 10
universities, only two included language that
referred expressly to the internet or electronic
communications
• The problem is governed pursuant to general
rules about student conduct that are rooted in a
university's legitimate interests
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4. Student expression, policy and law
• Are all interests the same?
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5. Student expression, policy and law
• Are all interests the same?
A. Interest in complying with legal duties such as those imposed anti-discrimination
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legislation, health and safety legislation and the
common law of negligence
B. Interest in otherwise enabling members of the college community
to use and enjoy the learning and working environment or facilities
C. Interest in raising funds, recruiting and retaining employees,
students and co-operative education employers and the general
interest in establishing and maintaining a strong reputation

6. Student expression, policy and law
• Are all interest the same?
CAUS 2014
-Connection to university interest will flow
from an impact on a student's studies or safe
enjoyment of facilities
-B and W case from York University
illustrates
-It's difficult not to take responsibility

7. Student expression, policy and law
• Are all interest the same?
CAUS 2014
-This may be evidence of alcohol-related
misconduct or actionable incivility
-But what context would make it appropriate
to take action in response to the publication
of this image itself?
-What if this was a student athlete?

8. Student expression, policy and law
• Survey shows most reserve rights but exercise
them carefully
• 6/10 codes reserved jurisdiction extending to the
institution's interest in its reputation
• 2/10 codes referred expressly to reputation
• 9/10 had student athlete codes
AND
• 5/10 had a "personal affairs" limitation
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9. Student expression, policy and law
• How is the jurisdiction reserved?
• "Proper functioning of activities of the university"
• "Real and substantial connection to legitimate
interests"
• "[Non-jeopardization of] the university's mission"
• "Interests are affected"
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10. Student expression, policy and law
• What have the courts said?
• Your interest in protecting reputation ranks low in the
eyes of a judge (or, at least, ranks low against the
value in expression)
• It is not reasonable to find expression that is
justifiable in the context as misconduct
• Decision-making bodies need to consider words
spoken and justification and record reasons
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11. Student expression, policy and law
• Zhang v University of Western Ontario
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12. Student expression, policy and law
• Pridgen v University of Calgary
• Application judge and CA find that "injury" encompasses more than physical
harm – i.e. there is jurisdiction over harm to a natural person's reputation
• But this can be seen showing how judges struggle with reputation
• They want to see (on the record) that the decision maker considered (1) the
meaning of each word and (2) its legitimacy in light of expression rights
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13. Student expression, policy and law
• Telfer v University of Western Ontario
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14. Gathering social media evidence
• Who?
• One person
• One person likely to be a good witness
• When?
• Immediately (it disappears)
• Pre-confrontation (it disappears)
• Periodically (duration of publication is relevant)
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15. Gathering social media evidence
• How?
• A printout of a screen capture is a poor
representation of the evidence…
• … but is usually okay for expression cases
• Printing doesn’t tell you what is linked to what, so
take notes
• Take notes on steps, functionality of tool
• Sign it and date it
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16. Gathering social media evidence
• What?
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17. Gathering social media evidence
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18. Gathering social media evidence
• What?
• How many people read it?
• Who read it?
• How did readers react?
• And don’t forget…
• Circumstantial evidence that supports identification
• What else?
• Preserve complaints (e-mail, voicemail…)
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19. Other social media issues to watch
• Governance of university social media use and
• Proliferation of university accounts
• CASL risks associated with "direct messages"
• Legal and ethical constraints on collecting
evidence from social media
• Internet monitoring and the standard of care
• Duties to maligned (but otherwise safe)
employees
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20. Case law citations
• B and W (1985), 52 OR (2d) 738 (HC)
• Canada (Attorney General) v Tipple,
2011 FC 762
• Doré v Barreau du Québec, 2012 SCC 12
• Lee v Ontario (Ministry of Community
Safety and Correctional Services), [2013]
OPSGB No 1 (GSB)
• Lewis v Rancourt, 2013 ONSC 1564
(CanLII), aff'd 2013 ONCA 701, leave to
appeal to SCC denied (35676)
• Pacheco v Dalhousie University, 2005
NSSC 222
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• Pridgen v University of Calgary, 2010
ABQB 644
• Pridgen v University of Calgary, 2012
ABCA 139
• Canada (Attorney General) v. Tipple,
2011 FC 762
• Tipple v Canada (Attorney General),
2012 FCA 158
• Telfer v The University of Western
Ontario, 2012 ONSC 1287
• Zhang v The University of Western
Ontario, 2010 ONSC 6489

21. Social Media – Issues and Trends
CAUS 2014 Academic Program
September 19, 2014
Dan Michaluk