To Post or Not to Post: Social Media, Informal Communication and Professional Obligations

When I started practicing law, a partner at my firm warned me that “you’re never not a lawyer”. He explained that there is no clear distinction between your personal and professional life. As a lawyer, regardless of whether you were “off duty” or not, your professional reputation can be negatively impacted by what you say and do.

This wisdom holds true more now than ever in a social media world. Having the ability to instantaneously transmit comments, pictures and videos to an unlimited audience can lead to dangerous results for professionals. We have seen this in a number of recent regulatory and court decisions.

Strom v Saskatchewan Registered Nurses Association

One of the early decisions highlighting the dangers of social media is Strom v Saskatchewan Registered Nurses Association, 2020 SKCA 112. Ms. Strom is a registered nurse. Her grandfather passed away at St. Joseph’s Health Center in Macklin, Saskatchewan. Ms. Strom posted comments on her personal Facebook page about the care her grandfather had received in his last days at St. Joseph’s. She also tweeted those comments to the Saskatchewan’s Minister of Health and the Saskatchewan opposition leader. Some of the employees at St. Joseph’s took exception to the posts and reported them to Ms. Strom’s professional regulator (the Saskatchewan Registered Nurses’ Association). Ms. Strom was charged with professional misconduct because the SRNA indicated that she was bound to follow proper channels, not negatively impact the reputation of the facility and staff, obtain all of the facts before making statements on social media, and not use her status as a registered nurse for personal purposes. Initially, Ms. Strom was found guilty of professional misconduct, which decision was upheld by the Saskatchewan Court of Queen’s Bench. The decision was though later overturned by the Court of Appeal.

The Court of Appeal, in overturning the determination of professional misconduct, provided some clarification on when off-duty conduct can amount to professional misconduct. The general question is whether there is a sufficient nexus between the off-duty conduct and the profession. There was little evidence to suggest that Ms. Strom’s communications would have any impact on the profession or the public. Further, the discipline panel did not properly consider Ms. Strom’s right to freedom of expression. While freedom of expression is not absolute and can be abrogated to some extent based on the demands of the profession, the full contextual factors were not considered by the discipline committee.

The takeaways from Strom for professionals are that (1) off-duty communications can amount to professional misconduct if there is a sufficient nexus between the communications and the profession; (2) professionals should be free to engage in debate and dialogue, but professionals would be wise to consider tone, audience, and whether to identify as a professional.

Peterson v College of Psychologists of Ontario

Another well-publicized decision regarding off-duty, social media communication is Peterson v College of Psychologists of Ontario, 2023 ONSC 4685. This case involves the well-known author, Jordan Peterson. Dr. Peterson published several tweets and made remarks on the Joe Rogan podcast that were considered by individuals to be offensive. The decision outlines the remarks made in greater detail, but they include:

  1. Two tweets appearing to invite social media posters to kill themselves;
  2. Several insults directed at various individuals, including an indication that a doctor who had performed breast removal on the actor Elliot Page was a criminal; and
  3. Demeaning language regarding the appearance of a plus-sized model.

In his Twitter bio, Dr. Peterson referenced to his standing as a psychologist.

The investigation committee of the College of Psychologists of Ontario reviewed the complaint and tweets (along with Dr. Peterson’s responses) and concluded that the communications constituted professional misconduct. They found that the communications posed risk of harm to the public and could undermine public trust in the profession of psychology. The investigators required that Dr. Peterson enter a coaching program on professionalism in public statements.

The decision of the investigation committee was appealed by Dr. Peterson. That appeal was dismissed. The Court noted that Dr. Peterson’s remarks were not conversations with friends or colleagues, but public statements to broad audiences with a vast following. Further, the Court thought it was notable that Dr. Peterson was referring to himself as a clinical psychologist when making the statements. Dr. Peterson sought leave to appeal the decision to the Ontario Court of Appeal, but the leave request was denied.

The takeaways from the Peterson decision include: (1) identifying your profession while making off-duty statements is a consideration as to whether you have committed “professional” misconduct; (2) intemperate statements made to a broad audience are more likely to amount to professional misconduct; (3) the connection between the profession and the statements is a relevant consideration (eg. a psychologist, whose profession counsels those contemplating suicide, inferring that individuals kill themselves may impact the reputation of the profession).

Pitter v College of Nurses of Ontario

In Pitter v College of Nurses of Ontario, 2022 ONSC 5513, two nurses who spoke out on social media and at a public gathering against masks and vaccines during the COVID-19 pandemic were charged with professional misconduct. Both identified themselves as registered nurses. One nurse’s comments included allegations that vaccines had the ability to track and manipulate thoughts and movement and were part of a conspiracy. The other nurse suggested that vaccines cause cancer and will impact fertility (in an effort to decrease the global population).

The nurses were cautioned for their statements (made during their “off-duty” time), which decision was upheld on appeal to the Court.

The takeaway from Pitter is that a professional can be cautioned for spreading misinformation, particularly if that misinformation is connected to the profession itself (eg. a health professional spreading misinformation about health-related matters).

Chaban v Royal College of Dental Surgeons of Ontario

A more recent case is Chaban v Royal College of Dental Surgeons of Ontario, 2024 ONSC 1075. This case involved a dentist making short Tiktok videos containing sexual innuendo. In one video, the dentist pulls down his mask and, smiling, licks his upper teeth while the music accompanying the video states “Would you like me to seduce you?”. The second video had a caption saying “when you give your patient an oral exam and see a circle pattern at the back of their throat.” Five seconds into the video, the dentist cocks his eyebrows and smiles.

The dental college found that these postings were inappropriate and required him to attend for an oral caution and complete a remedial program. He appealed that determination, which appeal was dismissed by the Court.

The takeaway from the Chaban case is that the reputation of the profession can be negatively impacted by making public, unprofessional communications.

Conclusion

Professionals must consider their reputations and the impact of the profession before publishing materials, particularly when they are identifying as professionals. There is no bright line between personal and professional lives when it comes to social media postings. So, a professional is wise to err on the side of caution.

Contacting a Lawyer on this Subject

Sean Sinclair is a partner with Robertson Stromberg LLP. His main areas of practice are Media Law / Defamation, Family Law, Estate Litigation, and Administrative Law. Contact Sean at 1-306-933-1367 or [email protected]. The above is for general information only, and not legal advice. Parties should always seek legal advice before taking action in specific situations.

Sean Sinclair achieves landmark victory in case involving non-consensual distribution of intimate images and videos

Robertson Stromberg LLP lawyer, Sean Sinclair, successfully represented a client in a recent lawsuit dealing with the non-consensual distribution of intimate images and videos.  The case was a first of its kind in Saskatchewan and resulted in the largest damages award in Canadian history against a distributor of revenge porn. The matter was reported in the CBC. Read it here.

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Internet and Social Media Defamation

I commonly receive telephone calls related to internet and social media defamation. The internet and social media are ripe with slanderous statements posted by people who perceive they have absolute anonymity. These posts can impact people’s careers, their families, and their reputation. When I get these calls, I generally consider several questions:

  1. Are the comments defamatory?
  2. Are there valid defences that could be raised by the internet poster?
  3. Do we know who posted the information or could we find out?
  4. If we know who posted the information, are there obstacles that would make pursuing a legal claim impractical?
  5. Does pursuing the poster make financial sense?

Are the Comments Defamatory?

It is not hard to prove that a comment is defamatory. Basically, you need to prove that a statement was made that would negatively impact a person’s reputation. It should be kept in mind that a random, negative comment such as “I hate that guy” or “He sucks” may not negatively impact someone’s reputation. It really depends on context, including where the comments are posted.

Are there valid defences that could be raised by the internet poster?

There are many possible defences to defamation claims. Some of the most common in internet cases are:

  1. Justification (truth); and
  2. Fair comment (opinion).

Truth is a defence to a defamation claim. Truth can sometimes be hard to prove if a poster does not have first-hand knowledge about what they are posting about. If they are reliant on the statements made by others, there is an open question as to whether that third party will actually back up the claims if push comes to shove in a court proceeding. The poster has the onus of proving the truth of the comments.

Defamation law also protects people from expressing opinions if those opinions are based on “true facts”. For instance, if someone posts a negative review for a restaurant because they did not like their meal, the poster’s opinion is protected. On the other hand, if the poster has a grudge against the restaurant owner and did not actually eat there, but then posts a negative review pretending like they had a bad meal, those comments are not protected by “fair comment” because the comments are not based on “true facts”.

Do we know who posted the information or could we find out?

A practical problem with the internet is that a lot of comments are made anonymously or under a pseudonym. In many cases, a person can seek a court order to require the website or social media company to provide details as to the IP address and the registration information for the poster, but that does not always reveal the actual poster. Thus, there can sometimes be some practical barriers to pursuing information about the poster. Also, obtaining a court order to reveal a poster’s name can be an expensive proposition.

If we know who posted the information, are there obstacles that would make pursuing a legal claim impractical?

One of the main obstacles with defamation cases is where the poster is located. If the poster is in Canada, a defamation claim is relatively straightforward. However, if the poster is a non-Canadian, there can be practical issues associated with pursuing that person, depending on the jurisdiction.

The United States is particularly difficult because of the SPEECH Act (Securing the Protection of our Enduring and Established Constitutional Heritage Act). This Act makes foreign libel judgments (including Canadian judgments) largely unenforceable in U.S. courts. The SPEECH Act also generally makes it so that a U.S. company can ignore a Canadian order requiring disclosure of a poster’s identity.

In addition to jurisdiction issues, a court proceeding is public. Some people do not want the potential exposure and publicity associated with starting a court action. Thus, it may not make sense to start a court proceeding if the internet posting is likely to fade from public consciousness quickly.

Does pursuing the poster make financial sense?

This is a major consideration in any defamation case. The cost of obtaining orders to disclose a person’s identity coupled with the cost of starting a legal action can sometimes exceed what the court might award for damages. In Saskatchewan, we have had “successful” defamation cases where a plaintiff was awarded $10,000-20,000. Likely, the legal costs exceeded that amount of money in those cases. I generally also question whether the poster has any money to pay a judgment.

However, there are cases where a person might have lost a job or business, where the damages might be significant. In a recent case, a Saskatchewan court ordered $240,000 in damages for posting false information on a website.

Conclusion

Internet defamation cases are increasing, and they are complex. Our legal team at Robertson Stromberg LLP would be happy to assist you with any advice that you need in pursuing or defending against an internet defamation case.

Sinclair lifts publication ban on name of teen

Sean Sinclair successfully brought an application to lift a publication ban for the CBC in a sexual assault and drug trafficking case.  The victim, Tonya Pahtayken, a 15-year old leukemia survivor, died shortly after testifying in the criminal trial.  There had been a publication ban on Tonya’s name and any information that might identify her. The CBC, at the request of Tonya’s family who wanted to tell her story, was able to lift that ban and has published an account of Tonya’s struggles here: https://www.cbc.ca/news/canada/saskatoon/judge-lifts-pub-ban-on-name-of-teen-1.5609368.

Whether it’s personal or business, we handle cases ranging from wills to overseeing complex business deals, and everything in between. Our success comes as a result of our collective effort. Combining the experience of your lawyer together with the resources of our team, you can put your trust in us to handle your case with confidence.

Area of ExpertiseMedia Law / Defamation