InfoLAW: Social Media

Social media platforms such as Facebook, Twitter, Instagram, Snapchat, Tik Tok, YouTube, and LinkedIn allow us to communicate in real-time with “friends”, “followers” or the public. Nurses may use these sites as research and educational tools, for information sharing and as a way to network or socialize. Understanding the legal considerations involved in using social media may prevent potential adverse personal and professional consequences.

Confidentiality and Other Professional Obligations

Nurses, like other health care professionals, are held to a high standard of confidentiality with respect to all patient information. Professional practice standards regarding confidentiality, therapeutic boundaries and professional image are engaged when nurses use social media in connection with their professional activities or in a manner that may affect their professional reputation. The duty of confidentiality has long been entrenched in professional standards and in provincial and territorial legislation governing the collection, use and disclosure of personal health information. Professional standards also set out an expectation that nurses conduct themselves in a professional manner towards patients, colleagues and the general public. Failure to abide by these standards can lead to professional and legal consequences, including disciplinary action from a nurse’s regulatory body or employer.

For example, an Ontario nurse was found guilty of professional misconduct after posting personal health information about a client to a publicly accessible website, including negative comments about that client’s behaviour. As another example, a hospital employee who posted information about a patient’s death on social media was terminated. While the employee did not post the patient’s name, the post included sufficient details to determine the circumstances surrounding the patient’s death, age, and location. The employee was ultimately terminated on the grounds that they breached patient confidentiality and hospital policy. While this individual was not a regulated health professional, it illustrates that a breach of confidentiality can be found even when the patient or client is not named if it is possible to identify the patient by other means.

A civil action, in which a party seeks financial compensation from another, may also be commenced as a result of the use of social media if the information posted on social media is defamatory, and if it unduly affects the privacy rights of others. Four Canadian jurisdictions have adopted legislation providing for financial compensation in such claims where an individual’s privacy is violated. Posting or sharing a patient’s confidential information could also result in a prosecution for breach of applicable privacy legislation. In certain circumstances, an inappropriate post may even result in criminal sanctions. The Criminal Code defines what comprises an “intimate image” and states that any individual who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person without consent is guilty of an offence.

Even absent such legislation, with the proliferation of social media and easier means of accessing and sharing information, courts are now more inclined to provide a remedy for cyberbullying or a breach of privacy when none previously existed. For instance, courts have recognized that a claim might be available if an individual makes another individual’s private information public or in the case of  “publicity which places the plaintiff in a false light in the public eye.”¹ As a result, the payment of compensation might now be ordered in some jurisdictions in a case of cyberbullying.

Using Social Media for the Provision of Care

Given their expertise, nurses are often called upon by friends and family (and occasionally, their clients) to provide informal advice about a new condition or follow-up care. Social media and messaging applications facilitate the exchange of photographs and information that could form the basis of the request for a professional opinion. Despite their ease of access, there are many reasons to avoid the use of social media to provide professional advice. Among them:

• nurses are responsible for maintaining professional boundaries;
• privacy and confidentiality are not adequately safeguarded over social media platforms;
• providing advice to friends and family may lead to a conflict of interest;
• informal exchanges may lead to the inadequate collection of personal health information;
• informal exchanges may lead the recipient to rely on the information provided as a professional opinion;
• the nurse may inadvertently establish a therapeutic relationship with the recipient of the information;
• if a therapeutic relationship is established, the exchange over social media may not be properly retained in the patient’s medical record; and
• social media platforms generally deprive the nurse of the opportunity to conduct a comprehensive assessment including verification of the patient’s identity or a thorough physical examination.

The Nurse as an Advocate

One ongoing issue is whether it is appropriate for nurses to advocate for patients and improvements in the healthcare system through social media. In some circumstances, nurses may feel they have an ethical or moral duty to raise concerns when they believe that patient well-being is at risk.

There are several means by which nurses can raise concerns about various aspects of the health care system, which benefit from protection under the law. Such examples include speaking/writing to their employer, submitting a complaint to a regulatory body, or the use of incident reports.  In contrast, posting or sharing such concerns on social media could give rise to legal complications in the event it breaches patient confidentiality or is considered by employers or the nursing regulator to be contrary to the best interests of the public, nurses, or brings harm to the standing of the nursing profession. The regulator may also outline the appropriate use of the title “nurse” when commenting in a public forum. The Saskatchewan Court of Appeal recently confirmed that professional regulatory bodies generally have the authority to determine when public communications are “contrary to the best interests of the public or nurses, or tends to harm the standing of the nursing profession”² but that the courts maintain a right to review those decisions. In that decision, the Court also enumerated a non-exhaustive list of contextual factors to help determine if speech relating to healthcare constitutes professional misconduct:

• “whether the speech was made while the nurse was on duty or was otherwise acting as a nurse;
• whether the nurse identified themself as a registered nurse;
• the extent of the professional connection between the nurse and the nurses or institution the nurse has criticized;
• whether the speech related to services provided to the nurse or their family or friends;
• whether the speech was the result of emotional distress or mental health issues;
• the truth or fairness of any criticism levied by the nurse;
• the extent of the publication and the size and nature of the audience;
• whether the public expression by the nurse was intended to contribute to social or political discourse about an important issue; and
• the nature and scope of the damage to the profession and the public interest”. ³

Accordingly, when considering posting publicly, it would also be prudent for a nurse to first consider whether there are other appropriate channels (such as those listed above) to raise their concerns which have been established by their employer and/or institution. Certain regulators may even outline specific guidance as to the appropriate channels in which to raise concerns. These procedures are put in place for a variety of reasons, including to ensure the credibility of the information, protect patient confidentiality, and/or resolve the issue brought forward. In determining whether to speak up and by what means, nurses might also want to consider if they have a duty to report and if they could be reprimanded for not reporting the issue sooner. As a result, it may be difficult for a nurse to defend to their nursing regulator the reason why they did not use the appropriate communication channel before resorting to speaking publicly.

Aside from any professional, employment or regulatory considerations, it is important to consider that even when nurses feel compelled to speak up publicly for the greater good, they can still be subject to private legal actions. Accordingly, as with any public statement, nurses may also wish to consider whether sharing concerns on social media could be considered defamatory or amount to a breach of privacy for which the court might award a financial compensation.

Social Media Risks and Considerations

Scope of distribution

Because information shared over the internet is quickly and widely distributed, archived and downloaded, the person posting the information may ultimately have very little control over who sees it and its use.

Permanence of information

A social media post is generally permanent. Archived copies of deleted information may still exist on search engines or in friends’ (or others’) electronic files. The Supreme Court of British Columbia has commented that “anyone posting remarks to a [Facebook] page must appreciate that some degree of dissemination at least, and possibly widespread dissemination, may follow.”⁴

This is a particularly important consideration for nurses using applications such as Snapchat, which are designed to delete content after only being available for a set period of time. It is critical to remember that such content can still be saved or downloaded by other users who may choose to share or distribute the post, even though it is no longer available through the original account. This can result in a dangerous situation as the original account holder no longer has control over the content that was shared. For example, two staff members at a naval hospital took photos and videos of infant patients with inappropriate gestures and comments. The posts were shared via Snapchat but followers took screenshots and shared the posts on other social media sites where they were viewed over 185,000 times. The staff members were subsequently removed from patient care after the hospital learned of their behaviour.

Misapprehension of the extent of privacy controls

Although social media sites may have privacy controls, be aware that the default settings for many social media platforms permit others, including members of the public, to view your posted information. Information shared on social media, even when account settings are set to “private” and not available to the public, may have to be preserved and disclosed in court if found relevant to the issues in a proceeding.

Crossing Boundaries

Nurses who engage with their patients through social media may run the risk of crossing professional boundaries by blurring the line between professional and personal and this may impact the therapeutic relationship.

Pseudonyms

Posting anonymously or under a pseudonym does not protect against the possible consequences of a breach of confidentiality or defamation. Once a civil claim has been commenced, the disclosure of relevant information, including individual IP addresses and subscriber information that may identify individuals operating on an anonymous basis, is required. Additionally, individuals posting anonymously can face substantial cost awards to account for the added expenses in attempting to uncover their identity.

Reputational damage

Posts that a nurse may believe have been archived or deleted may resurface on a professional level to their detriment. Many employers are now reviewing social networking profiles of current and prospective employees and may identify misconduct, inappropriate behaviour or behaviour that may adversely affect a nurse’s professional integrity.

Risk Management

Consider the following best practices:

• Avoid posting/sharing confidential information: an unnamed patient or person may be identifiable even if their name is not included;
• Avoid posting negative comments about colleagues, supervisors and other healthcare professionals; disclosing information obtained at work could be considered unprofessional and, if erroneous, could lead to a defamation claim;⁵ Respect and enforce professional boundaries: connecting with a patient through social media sites in any way may extend the scope of professional responsibility and cross boundaries in the therapeutic relationship;
• Be aware that it is difficult to verify the identities of individuals providing or seeking information through social media;
• Avoid offering health-related advice in response to comments or questions posted on social media sites; if relied upon, such advice could lead to professional liability;
• Make personal profiles private and accessible only to known and trusted individuals;
• Create strong passwords, change them frequently and keep them private;
• Present yourself in a professional manner in photos, videos and postings;
• Be aware that when identifying as a nurse on social media platforms, you may be perceived to be acting within your professional capacity; and
• Familiarize yourself with any relevant policies and standards of your employer and/or professional licensing body; these may include topics such as confidentiality, therapeutic boundaries, professional standards, and social media/technology.

Before communicating on social media, it is important to consider what message is being communicated and the impact it may have, if viewed by an employer, a patient, nursing regulator or a member of the general public. Please contact CNPS at 1-800-267-3390 if you have further questions regarding the professional implications of using social media.

Please note this is an abridged publication. Should you require a CNPS branded PDF version of this article containing all references, please make a request using the following link and a member of our team will email it to you shortly: https://cnps.ca/request-for-printed-materials/. 

1. Yenovkian v. Gulian, 2019 ONSC 7279 (CanLII)
2. Strom v Saskatchewan Registered Nurses’ Association, [2018] SKQB 110 
3. Strom v Saskatchewan Registered Nurses’ Association, [2020] SKCA 112.
4. Pritchard v Van Nes, [2016] BCSC 686, para 83.
5. For the communication to be considered defamatory, the statement would tend to lower the person in question’s reputation in the eyes of a reasonable person, refer to the person or organization that claims to have been defamed, and be published, meaning communicated to at least one person other than the person or organization who claims to have been defamed. for more information, please consult CNPS‘ article on Defamation, https://cnps.ca/article/defamation.

Revised June 2021.

THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.