Tuesday, May 1, 2007

Facebook: Student lessons on libel

Some students in Toronto are getting a primer on libel and ethics this week, as they were banned from a class trip as punishment for making false accusations about a teacher on Facebook. In the most recent incident, a group of Grade 8 students jokingly accused a teacher of masturbating in class. There have been two similar incidents in Ontario in recent months, according to this Canadian Press story:

"The principal implemented our progressive discipline policy, and so no, there are no new developments," Robert Dunn, superintendent of the York Region District School Board, said when asked if the punishment was being re-thought. The action follows two other recent high-profile incidents in the province.

Five teenagers were suspended last month from Toronto's Birchmount Park Collegiate for writing inappropriate remarks about staff. In February, 19 students who blamed their principal for school policies on cellphone use, and took their gripe online, were suspended from Robert F. Hall Catholic Secondary School in Caledon East, northwest of Toronto.

Part of the problem may lie in the expectations students have of the Internet. "Kids don't think of those places as public places," said Annie Kidder of the group People for Education. In a recent Ipsos-Reid poll conducted for Microsoft Canada, 70 per cent of respondents aged 10 to 14 said they believe the information they put online is private.

It is clear that the line between private and public is blurring as people increasingly use social networking technologies to share their most intimate thoughts and ideas. In the most recent case, a teacher’s reputation and career could have been put on the line as his name was associated with inappropriate conduct on the job, whether done jokingly or not. According to Canadian Defamation Law, these kinds of false accusations certainly seem to fit the interpretation of libel. From Duhaime Law (emphasis in italics are mine):

Defamation was well described in a 1970 British Columbia Court of Appeal decision called Murphy v. LaMarsh: (Defamation is where) a shameful action is attributed to a man (he stole my purse), a shameful character (he is dishonest), a shameful course of action (he lives on the avails of prostitution), (or) a shameful condition (he has smallpox). Such words are considered defamatory because they tend to bring the man named into hatred, contempt or ridicule. The more modern definition (of defamation) is words tending to lower the plaintiff in the estimation of right-thinking members of society generally.

The major points of defamation law in Canada are as follows:
- Defamation is a "strict liability" tort. In other words, it does not matter if the defamation was intentional or the result of negligence. Defamatory material is presumed to be false and malicious. "Whatever a man publishes", according to one case, "he publishes at his peril."
- Defamation must be a direct attack on an actual reputation, not an alleged reputation that a "victim" believes they deserve. A judge will assess the statement against the evidence of the victim's reputation in their community.
- The remarks must be harmful (i.e. "defamatory") and this will be assessed on a case-by-case basis. Some statements are clearly defamatory. Other statements would only be defamatory to the person targeted by the remarks. What may be a nonsensical or mildly offensive remark to one person may constitute serious defamation to another. The judge will consider the situation of the person defamed in assessing the claim of defamation.
- The defamatory remark must be clearly aimed at the plaintiff. General, inflammatory remarks aimed at a large audience would not qualify as the remarks must be clearly pointed at a specific person.
- The defamatory remarks must be somehow conveyed to a third party. Private defamation just between two parties causes no reputation damage to reputation because there are no other persons to be impacted by the remarks. With libel, the damage is presumed as it is published.

Posting these kinds of accusations on Facebook or in a blog is no different from publishing them in a book or a newspaper. So, I think that teaching administrators are taking the right approach by suspending the privileges of students who make these kinds of false accusations, in order to help them and other students understand the seriousness of their actions and the potential consequences to individuals who are the target.

In Canada, teacher-librarian associations have been advocating for over a decade for an Information Literacy curriculum to provide students with the knowledge and skills to understand the opportunities and risks of web-based information. Students need to understand their rights to free speech, as well as their legal obligations, and based on these incidents, they need it early.


One Eyed View said...

Great article! I would expect that we will be seeing more of a focus on teaching students about the risks and opportunities of web-based as the years pass; at least I hope that's what happens.

Speaking of libel and ethics, what about sites like http://www.dontdatehimgirl.com/ ? Couldn't information on these types of site be considered libel, as most of the posts about these men include pictures and names without documented or legal proof of their wrong doing?

Just wondering:)


Sharon E. Herbert. said...

I remember hearing about dontdatehimgirl.com, but haven't actually visited yet. Will do so later today. I'm not a lawyer or legal expert, so I wonder about jurisdictional issues with respect to defamation, i.e. if a Canadian citizen posts something on a US website, which law applies? I'm sure we'll start to see more people test these laws by bringing forward lawsuits. It will be interesting to see the decisions that arise. Thanks for your comment.