Message from the Chief Administrative Officer

The Social Media Minefield

By Kelly Stofer, BCLS Chief Administrative Officer

It was about this time last year when (now former) Houston Rockets general manager Daryl Morey took to Twitter in support of the Hong Kong protests: “Fight for Freedom. Stand with Hong Kong”. As you might expect, Beijing took issue with the comments. So did the NBA, at least initially, issuing what amounted to an apology. The tweet obviously affected the league’s business interests in China where there are over 600 million NBA fans.

At the same time, the NBA appeared to support Mr. Morey’s right to freedom of expression. Except Rockets ownership seemed to distance itself from Mr. Morey. Adding to the confusion, Morey removed his tweet, which then drew further criticism from politicians and others. In November, Mr. Morey stepped down as general manager of the Rockets. I don’t know if the Twitter incident was a factor, but it does seem likely.

In the United States, where Mr. Morey is from, the First Amendment to the Constitution guarantees free speech. wrong. In China, there is no guaranteed freedom of expression. Between business and geopolitics, the kerfuffle over the tweet was entirely predictable.

Here in Canada, the Charter of Rights and Freedoms is clear that everyone has freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. Free speech is a democratic principle extending back to the ancient Greeks in the fifth century B.C. This brings us to a less predictable social media incident recently in the news much closer to home. In 2016, a Saskatchewan nurse was found guilty of professional misconduct by the Saskatchewan Registered Nurses Association for taking to Facebook and Twitter a year earlier to criticize the healthcare service received by her grandfather in long term care. The nurses at that facility complained, and the regulator’s discipline committee

But that doesn’t mean things can’t go decided the posts brought the profession into disrepute and violated its social media policy.

The nurse appealed the discipline committee’s decision to the Court of Queen’s Bench, but the court found no reason to interfere with the decision.

The Saskatchewan Court of Appeal heard the matter in 2019 and found otherwise. This October, it issued a decision to set aside the discipline committee’s finding of professional misconduct. The appeal court considered questions at the intersection of professional regulation, a professional’s private life, and the Charter’s guarantee of freedom of expression. Among the appeal court’s several findings was that the discipline committee unjustifiably infringed on the nurse’s right to freedom of expression.

In its decision, the appeal court remarked: … Indeed, the right to criticize public services is an essential aspect of the “linchpin” connection between freedom of expression and democracy. In Canada, public healthcare is both a source of pride and a political preoccupation. It is a frequent subject of public discourse, engaging the political class, journalists, medical professionals, academics, and the general public. Criticism of the healthcare system is manifestly in the public interest. Such criticism, even by those delivering those services, does not necessarily undermine public confidence in healthcare workers or the healthcare system. Indeed, it can enhance confidence by demonstrating that those with the greatest knowledge of this massive and opaque system, and who have the ability to effect change, are both prepared and permitted to speak and pursue positive change. In any event, the fact that public confidence in aspects of the healthcare system may suffer as a result of fair criticism can itself result in positive change. Such is the messy business of democracy. (emphasis added)

The discipline committee felt the nurse should have gone through proper channels with her concerns and filed her own formal complaint. The appeal court rejected that argument as it would deny registered nurses “… the right to choose their means of communication and audience. It would effectively prevent them from using their unique knowledge and