Facebook has become one of the most commonly used social forums by students in public and post-secondary educational institutions in Ontario. But can students who use Facebook to communicate messages which negatively target or impact their peers be disciplined by these institutions for "online" conduct that is taking place off-school premises? In recent decisions dealing with university students' activities on Facebook, two provincial courts considered this very issue, and commented on the necessary balancing of a student's right to freedom of expression with an educational institution's right to protect its members from speech that has a negative impact on its learning environment.
PRIDGEN V. UNIVERSITY OF CALGARY
In Pridgen v. University of Calgary1, two University of Calgary undergraduate students, Keith and Steven Pridgen, were both enrolled in a course called Law and Society, taught by Professor Aruna Mitra for the first time. Prof. Mitra was not popular with the students. Another student in the class created a Facebook page entitled "I No Longer Fear Hell, I Took a Course with Aruna Mitra." Each of the Pridgen brothers posed a single message about Prof. Mitra on the page. Prof. Mitra complained about the wall to the Dean of the Faculty.
Ultimately, all 10 students were found to have committed non-academic misconduct and were put on probation. Keith Pridgen was placed on probation for 6 months; Steven Pridgen was placed on probation for 4 months. When the Pridgens indicated that they intended to appeal these decisions to the Board of Governors, the University advised the Pridgens that an appeal was not open to them. They applied for judicial review before the Alberta Court of Queen's Bench, arguing that the Review Committee had infringed their right to free expression guaranteed in section 2(b) of the Canadian Charter of Rights and Freedoms 2 (the "Charter"). The court held that the Pridgens' Facebook postings had expressive content and conveyed meaning. Therefore, the postings were a protected form of expression under section 2 of the Charter, which includes specific protections for freedom of thought, belief, opinion and expression.
The court further reasoned that the University could have maintained a positive learning environment through means other than restricting the students' expression of criticism of their professor. The learning environment necessarily involves student expression of critical opinions on subject matter or teaching they are receiving. Therefore, the court reasoned that the University should have expected and encouraged frank and critical discussion regarding the teaching ability of professors, even where comments were unfavourable. The court stated:
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.3
Furthermore, the court held that the Review Committee's reasons were inadequate, and that the measures adapted by the Review Committee in disciplining the Pridgens for making critical comments were excessive, given that there was no reasonable basis to conclude that the comments made by the Pridgens caused injury to Prof. Mitra. The court ultimately quashed the decision of the Review Committee, and the students were removed from probation.
ZHANG V. UNIVERSITY OF WESTERN ONTARIO
In Zhang v. University of Western Ontario,4 the Ontario Divisional Court considered an appeal by Zhang, a first year law student at the University of Western Ontario, who had been expelled from the University after making a number of inappropriate Facebook postings. The University had received complaints regarding Zhang's in-class conduct, which was characterized as "unduly gruesome", "macabre", "frightening" and "graphic", and included making inappropriate references to students. While in the classroom, Zhang was watching videos of terrorist activities and suicide bombings, and controlled a Facebook page called "Dr. Frank N. Stein". On the Facebook page, Zhang made several controversial postings, including:
"Dr. is eating babies"
"Dr. is free to observe torture without criminal liability"
"Dr. is learning how to get away with murder in his criminal law class".
After complaints from other students regarding Zhang's online behaviour, he was suspended from the Faculty on the basis that Zhang had breached his responsibilities under the University's Code of Conduct. The Code clearly stated that it applied to "off-campus conduct that has, or might reasonably be seen to have an adverse effect on the proper functioning of the University or the rights of a member of the University community to use and enjoy the University's learning and working environments".
Shortly after returning from suspension, Zhang made a new graphic posting to his Facebook page directed at a particular student. Subsequently, Zhang was permanently expelled from the Faculty of Law. Zhang's appeal to the University Discipline Appeal Committee was denied. Among its findings, the Committee concluded that:
...a reasonable person would find the message posted by Mr. Zhang disturbing and threatening and would cause fear and apprehension among his classmates, particularly in light of the incidents that occurred in the fall of 2007, which according to the testimony of the Dean, had created a "climate of fear" in the law school.5
Zhang applied for judicial review of the Committee's decision to the Ontario Divisional Court. The court held that the University had not infringed Zhang's right to freedom of expression under section 2 of the Charter. The court reasoned that there are limits to free speech, and that Zhang's postings fell outside those limits, as threats and defamation of character are not protected speech under the Charter. The court went on to affirm the University's right to assert control over the non-academic behaviour of students, stemming in part from universities' duty to protect members of their communities. The court ultimately upheld the decision of the university's appeal committee to expel Zhang from the university.
It is clear from the Pridgen and Zhang cases that conduct which threatens the safety or perceived safety of the university's members is not protected by freedom of speech under the Charter. On the basis of the court's reasoning in Zhang in particular, it is clear that courts would consider racist and homophobic comments, threats or defamatory comments, or sexual comments that create a poisonous environment in the university to be unprotected speech. It is also clear from these cases that a university's duty to protect its members from such hateful speech extends to off-campus activities, and includes students' online postings and activities.
CYBER-BULLYING IN THE SCHOOL CONTEXT
The principles arising from the Zhang and Pridgen cases can naturally be applied to the school environment, and in particular to cyber-bullying, which is an issue affecting an increasing number of Ontario school children and teens. Cyber-bullying is defined by the Ontario Ministry of Education as bullying that occurs through the use of information and communication technologies, e.g. spreading rumours or hurtful images or comments by means of e-mail or text messaging, or on social media site or personal websites.6 Recent research has indicated that 21% of students were bullied online recently.
As many as 32% of the students said that they had bullied others. Nineteen percent of the students interviewed said that rumours had been spread about them online.7
Ontario's Education Act8 also sets out a number of provisions regarding bullying, and with the passage of Bill 212 in 2007, provided educators with the tools to target bullying off-school property, including cyber-bullying. First, Bill 212 added "bullying" to the list of infractions for which suspension must be considered. Even more notably, Bill 212 gave school boards the authority to impose discipline for a broad range of student conduct that is found to have "an impact on the school climate", regardless of whether the conduct took place on or off-school premises. Ministry of Education policies have since clarified that administrators, teachers, and non-teaching staff have a positive obligation to respond to any student behaviour that is likely to have a negative impact on the "school climate".
1 2010 ABQB 644 (CanLII) ["Pridgen"].
2 Part I of the The Constitution Act, 1982.
3 Pridgen., at para. 82.
4 2010 ONSC 6489 (CanLII) ["Zhang"
5 Ibid., at para.27.
6 Ontario Ministry of Education, "Equity and Inclusive Education in Ontario Schools: Guidelines for Policy Development and Implementation" (Toronto: Ministry of Education, 2009), http://www.edu.gov.on.ca/eng/policyfunding/inclusiveguide.pdf ["PPM 144"].
7 Faye Mishna, Michael Saini and Steven Solomon, "Ongoing and online: Children and youth's perceptions of cyber bullying." Children and Youth Services Review 31 (2009) 1222–1228 www.elsevier.com/locate/childyouth.
8 R.S.O. 1990, c. E.2.About BLG
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