Regulating The Use Of Social Media By Professionals

• Published date: 10 October 2020
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Trials & Appeals & Compensation, Social Media
• Law Firm: Field LLP
• Author: Mr Jason Kully

The use of social media is widespread in today's world. It is used by nurses, doctors, lawyers, engineers, and other professionals to communicate with friends and others in both their professional and private lives. Social media use by professionals raises questions about the interaction between such use and the codes of conduct, professional standards, and a regulator's authority that govern professionals.

The Saskatchewan Court of Appeal addressed some of these questions in Strom v Saskatchewan Registered Nurses Association, 2020 SKCA 112. In this decision, the Court of Appeal quashed a finding of professional misconduct against Carolyn Strom, a registered nurse, who used Facebook and Twitter to criticize the health care her grandfather received. The finding of professional misconduct received widespread media coverage across Canada, indicating significant public interest in the issue.

In 2015, approximately a month after her grandfather died after spending 13 years in long-term care, Ms. Strom posted comments on her personal Facebook page about the care her grandfather received in his last days. Her Facebook posts were only available to her friends. The posts identified Ms. Strom as a registered nurse and stated her grandfather received "subpar" care, that the care lacked compassion, and that the care was not "up to date." They also urged others to come forward with concerns about the care provided at the facility. At the time of the posts Ms. Strom was on maternity leave. Her post also included a link to a newspaper article about end-of-life care. Ms. Strom and some of her Facebook friends engaged in a conversation about health care through further Facebook posts, in which Ms. Strom expressed some gratitude to nurses. Ms. Strom also used Twitter to tweet the posts to Saskatchewan's Minister of Health and the Saskatchewan Opposition Leader. At this time, the Facebook posts became public.

Some employees from the long-term care facility where Ms Strom's grandfather resided took exception to the posts and reported them to Ms. Strom's regulator, the Saskatchewan Registered Nurses Association ("SRNA"). While specific employees were not named in the posts, they worked in a small facility in a small town and felt they could be identified. The SRNA charged Ms. Strom with professional misconduct. Ms. Strom was found guilty of such professional misconduct by a Discipline Committee and was reprimanded, fined $1,000, required to submit two-reflective essays, and ordered to pay $25,000 in costs. After an unsuccessful appeal to the Court of Queen's Bench, Ms. Strom appealed the finding of professional misconduct to the Court of Appeal. In deciding her appeal, the Court of Appeal addressed the interaction between professional regulation, a professional's private life, and the Charter guarantee of freedom of expression in the age of social media.

The first issue addressed by the Court of Appeal was whether the Discipline Committee erred in finding Ms. Strom guilty of professional misconduct. Concerning the standard of review of the finding of professional misconduct, the Court of Appeal somewhat surprisingly applied the standard that applies to the review of "discretionary" decisions. This enabled the Court to consider whether the Discipline Committee failed to give sufficient weight to relevant considerations. In doing so, the Court did not provide any significant deference to the Discipline Committee's analysis and decision.

The Court of Appeal rejected the argument that off-duty conduct could only be disciplined if the conduct was reprehensible if undertaken by an ordinary member of the public, ignoring the professional status. It stated the central question in the imposition of professional sanctions for...