Social media raises complex and challenging issues for all professional regulators. Professional regulators must maintain dignity, civility and professionalism among their members - while balancing their obligations to respect a professional's entitlement to a personal life and to uphold his/her fundamental rights under the Canadian Charter of Rights and Freedoms.
A recent decision of the Saskatchewan Court of Appeal provides valuable insight into a professional regulator's responsibilities when assessing the propriety of a member's online conduct.
Background - Saskatchewan Nurse Criticized Care Home on Social Media
The Saskatchewan Court of Appeal recently overruled a decision by the Saskatchewan Registered Nurses' Association (SRNA), which had found a nurse guilty of professional misconduct as a result of comments made online.
Ms. Strom, a registered nurse in Saskatchewan, had posted criticisms on her personal Facebook page about the care her grandfather received in his last days at a care home. Her initial post also included a link to a newspaper article about end-of-life care. She then tweeted the posts to Saskatchewan's Minister of Health and the Saskatchewan Opposition Leader.
The SRNA subsequently charged her with professional misconduct and ultimately found her guilty. This decision was initially upheld in the Court of Queen's Bench before being overturned by the Court of Appeal.
The Appellate Court found that the SRNA failed to consider all of the circumstances when determining whether Ms. Strom's off-duty actions rose to professional misconduct and that the decision unjustifiably infringed Ms. Strom's freedom of expression.
For more information about the decision and analysis of the case, read our "Regulating Professionals on Social Media" blog.
When is Social Media Subject to Professional Discipline?
Most professional regulators routinely remind and educate their members on the importance of maintaining professionalism on social media. It is well established that professionals who post inappropriate, unprofessional content on social media can be subject to professional discipline.
However, the Strom case serves to remind professional regulators that this discretion is not without limit, and they must bear proper legal considerations in mind when rendering a decision to avoid the risk of being overturned on appeal or subject to judicial review in the courts.
Disciplinary decisions punishing professionals for inappropriate comments posted on social media are typically challenged in the courts in two ways:
- arguing that the comments are off-duty conduct not subject to professional discipline; and
- arguing that the discipline infringes their constitutional right to freedom of expression.
Decisions which fail to give proper consideration and sufficient weight to a professional's freedom of expression and autonomy in his/her personal life tend to be struck down by the courts.
When assessing off-duty conduct such as conduct on social media, there must be a nexus between the off-duty conduct and the profession that demonstrates a sufficiently negative impact on the profession or the public interest.
This requires a contextual analysis that considers all of the facts, including the potential impact on personal autonomy, privacy and fundamental freedoms. Ultimately, professional regulators must consider these competing factors to make balanced decisions.
Considerations for Assessing Off-Duty Conduct
Restricting a professional's comments on social media will virtually always constitute an infringement of that professional's freedom of expression. However, that does not mean that such comments will be automatically immune from sanction.
All rights can be limited, provided the limitation is justified in a free and democratic society. This requires a consideration of the proportionality between the effect on the professional's fundamental rights and the legitimate objective sought to be advanced.
Some contextual factors to consider when making this assessment include:
- Whether the expression was made while on duty or otherwise acting in a professional capacity;
- Whether the professional identified him/herself as a member of the profession;
- Whether the expression was related to services provided to him/her or close friends or family;
- The truth or fairness of the expression;
- The extent of the publication and the size and nature of the audience;
- Whether the public expression was intended to contribute to social or political discourse about an important issue; and
- The nature and scope of the damage to the profession and the public interest.
Ultimately, as Justice Barrington-Foote noted in Strom, "It is entirely legitimate for a professional regulator to impose requirements relating to civility, respectful communication, confidentiality, advertising, and other matters that impact freedom of expression. Failing to abide by such rules can be found to constitute professional misconduct." However, where professional regulators fail to give due consideration to the fundamental rights in play, such findings are liable to be overturned by the courts.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.