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Case Study: Facebook & Labour Law in Canada

This incredible story begins in Edmonton when a veteran worker began posting to Facebook about their direct management. Sometimes while on the job and sometimes from home.The statements were 'offensive' according to some sources. The employee may or may not have known but all of their posts were public based on their profile settings at the time.


This is how the posts were discovered by co-workers who communicated the nature of the posts to management. The posts were regarded as "reprehensible, grossly insubordinate, threatening, and openly defiant and contemptuous of management". Here is a small sampling of those posts...

The posts referred to one of the supervisors as "evil," a "bitch," a "hag," "C_unt" and "the devil". The other supervisor was characterized as a "yes man" and an "idiot". The posts also contained threatening language such as "DIE BITCH DIE" and "WRONG AGAIN BITCH you gonna be the one missing PERMANENTLY" - Field Law's Workwise Newsletter.
Around the same time... beginning in June of 2009 Facebook started experimenting with changes to the site that were altering user's privacy settings and started new users with 'open' profiles by default:
These changes may or may not have effected this particular user. That information remains unknown as the date the user started using Facebook and their original privacy settings are not known. The posts were so extreme that the employee was ultimately dismissed. The union representing the employee filed a grievance. The case went to arbitration and weeks later I received an email requesting my expertise. Honestly when I first received the email I had a hard time believing it.

Around this time I began working at BCIT and was appearing in the media speaking about the barefoot bandit, political social media gaffes and social media charlatans. I had also been lucky enough to develop courses at BCIT. These things and a strong LinkedIn profile along with an honest and transparent online persona spurred a law firm in Edmonton to reach out to me.

The conversation was interesting to say the least. The information communicated to me demonstrated that the need for individuals with the knowledge and skills to discover information about social networks in these types of cases is large and growing. Young lawyers may have used Facebook or Twitter since they were teenagers but they don't necessary understand these networks in enough detail to be of assistance in these detail orientated cases.

The work was around what's called an  agreed upon 'Statement of Facts' that both the griever and the defendant agree to. I was tasked with analyzing and creating an accurate statement about the state of Facebook at the time of the incident. If the grievor challenged any items in the Statement of Facts I would be required to take the stand as an expert witness. This was an interesting position to be in. The other lawyer would be challenging me as an expert in the field while I was on the stand. The grievor eventual agreed to the 'Statement of Facts' and I wasn't required to testify.

I'd love to talk more about my opinion on the case and the circumstances surrounding it but I am unable to comment on the specifics of the case at this time as the decision may be subject to a judicial review(an appeal). It is therefore not appropriate to publicly provide my opinion on the outcome of the decision. Although I can share with you the case study as published publicly by the law firm I worked for. They also quote some of the posts made by the employee on the first page. Be sure to read it through as it is extremely insightful and interesting.


Arbitrator Upholds Discharge for Offensive Facebook Postings

This emerging and interesting new field of the law has definitely gotten me excited to do more work like this. It also spurs some interesting questions for me: What is an expert? What is a reasonable person? How would a reasonable person be expected to understand Facebook's privacy settings? Questions abound, but more importantly what do you think of the case?

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