The use of social media by students to criticise their courses and teachers gives rise to difficult freedom of expression issues. The point has been considered by the courts in a number of jurisdictions, most recently in the Canadian case of Pridgen & Pridgen v University of Calgary ([2012] ABCA 139) which was recently decided by the Court of Appeal in Alberta. The Court held that the University infringed the freedom of expression rights of twin brothers who had been disciplined for criticising a professor on Facebook.

The Decision

The issue in the case was, whether, as Madam Justice Marina Paperny put it, “students at public universities [are] entitled to use social networking to criticise the instruction they receive”. The university had decided not, disciplining the claimants in respect of comments they had posted on a public Facebook wall about one of their professors. The claimants, who with eight others were members of a Facebook group “I no longer fear hell, I took a course with [the professor],” suggested variously that the professor had lazily given everyone on a course the same mark, and that she had misled them about her status at the university. The group wall contained criticisms of the academic which were in much stronger terms, including suggestions that she was “inept”, “awful”, “illogically abrasive” and “inconsistent” and that she should be “drawn and quartered.”

The Claimants were found guilty of non-academic misconduct and were subjected to periods of probation and required to apologise to the academic concerned and to refrain from any defamatory postings. They complained, inter alia, that their freedom of expression had been interfered with contrary to section 2(b) of the Canadian Charter of Rights and Freedoms. The application for judicial review succeeded, the High Court ruling (1) that the Charter applied (2) that the Claimants’ rights to freedom of expression were violated and (3) that the violation could not be justified under section 1 of the Charter, which permits Charter rights to be subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The High Court also ruled that the action of the University was administratively unreasonable. The University appealed against this latter finding, and appealed also on the question whether the Charter applied to its disciplinary proceedings.

The Court of Appeal upheld the decision of the Court below that the action of the University was unreasonable on a number of grounds, among them the University’s failure to particularise what was said to be the misconduct of the students, the quality of the evidence of injury to the academic concerned relied upon and (O’Ferrall J, concurring in the result, §184). What is perhaps of particular interest is the judgment of Paperny J, who alone reached her conclusion on Charter grounds. Paperny J ruled ([66]), that the decision of Canada’s Supreme Court in McKinney v University of Guelph [1990] 3 SCR 229 “did not rule out Charter applicability on university campuses for all purposes”, pointing to the different routes followed by various of the Supreme Court justices in that case to the majority conclusion that the Charter did not apply to the mandatory retirement age imposed by the university. Madam Justice Paperny concluded that “the nature of the activity being undertaken by the University here, imposing disciplinary sanctions” amounted to “statutory compulsion” which in her view fell within the categories of government action to which the Charter applied (§105). This being the case, “In exercising its statutory authority to discipline students for non-academic misconduct, it is incumbent on the Review Committee to interpret and apply the Student Misconduct Policy in light of the students’ Charter rights, including their freedom of expression” (§112).

Madam Justice Paperny did not accept the argument that “the application of the Charter in these circumstances undermines or threatens the University’s academic freedom or institutional autonomy” (§113), ruling that academic freedom, understood as the “free and fearless search for knowledge and the propagation of ideas”, did not trump freedom of expression and, further, was “inextricably linked” rather than in competition with it (§§114-115, 117). In reaching this conclusion, she relied both on the US constitutional jurisprudence and on the UK’s Education (No. 2) Act 1986 which “imposes an obligation on universities and colleges to take the steps that ‘are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment, and for visiting speakers’” (§116):

“One can no longer maintain a pastoral view of university campuses as a community of scholars removed from the rest of society. This does not mean that a university should not be able to direct its own affairs, certainly in academic matters, free from government interference. It should. Respecting Charter rights in disciplining students will not, in my view, inhibit it in the exercise of that institutional independence or the exercise of academic freedom. Rather, it will promote the institution as a place of discourse, dialogue and the free exchange of ideas; all the hallmarks of a credible university and the foundation of a democratic society” [122].

Further and in any event, arguments pertaining to academic freedom and institutional autonomy would be relevant to the section 1 question whether a particular infringement of freedom of expression was justifiable as a reasonable limit on Charter rights (§123). For example, the University expressed a concern that an obligation to respect Charter rights could interfere with decisions in areas central to its autonomy, such as admission standards and curriculum development. If in some future case a university can establish that the protection of a Charter right will interfere with academic freedom or institutional autonomy, the latter could, in my view, adequately be protected as a reasonable limit pursuant to section 1. In this case, however, the University, because of its position that the Charter did not apply, had made no attempt to balance the competing interests at play:

“… access to education, fostering an environment of open exchange of ideas, the prevention of incivility, intimidation, disrespect and fear, and the fostering of a safe environment to discuss and debate contemporary issues within and among a diverse student body. The balance to be struck is between the seriousness of the impugned conduct and its effect on the tenor of debate, and the student’s ability to criticize, comment on or refute the quality of education he or she receives. The University’s actions in disciplining the Pridgens did not balance their expressive rights with the University’s statutory objectives; indeed, the University denied the existence of those rights entirely“. [127]

Comment

It would be easy to overstate the significance of this decision whose Charter aspects are limited to a single judgment with which the majority of the Court of Appeal did not concur. The case nevertheless is worthy of note because the decision of the Supreme Court in McKinney is frequently taken to protect universities from the reach of the Charter. It also raises interesting questions about the balance to be struck between students’ freedom of expression and institutional powers to maintain reputation.

The University of Calgary sought to hold the ring by denying the application of the Charter in a case in which it had itself paid no apparent attention to free speech considerations, instead “throwing the book at” students whose criticism of their tutor had been relatively mild, and which had resulted in no evidenced injury. (It was a further striking aspect of the case, not mentioned above, that the spouse of the academic criticised by the Claimants had been involved at an early stage of the disciplinary activities.) As is clear from the concurring judgments of O’Farrell and McDonald JJ, it was not even necessary to engage in human rights analysis to find that the University had acted unreasonably in so doing. What the outcome might have been had it approached its task differently is open to question.

Aileen McColgan is a member of a Matrix Chambers and a Professor of Human Rights Law at Kings College, London