May 23, 2024

Even on TikTok, your professional self is just a Google search away

In 2020, the Saskatchewan Court of Appeal set aside a regulatory body’s decision to discipline a registered nurse for professional misconduct, when she posted on Facebook criticizing the palliative care that her grandfather had received at a health centre (Strom v Saskatchewan Registered Nurses’ Association2020 SKCA 112 – read our 2020 blog post about this decision here!). In that case, what started as a private conversation became public on Twitter, and the case raised the legal question of how regulators should navigate the intersection between professionalism, off-duty conduct, and freedom of expression guaranteed by the CharterFour years later, the age of social media continues to thrive, and regulators are increasingly confronting the question of where a registrant’s professional self ends and where their online identity as an off-duty person begins. The Ontario Divisional Court’s recent decision in Chaban v. Royal College of Dental Surgeons of Ontario, 2024 ONSC 1075 indicates that the distinction is becoming increasingly narrow.

What happened

Chaban involved a dentist who made and posted videos to the social media platform TikTok under the handle “@doctorchaban”. Two videos posted in December of 2022 became the subject of a complaint and subsequent investigation by the Royal College of Dental Surgeons of Ontario:

  • the first video showed the dentist in dental scrubs, sitting in an office and making suggestive gestures while a background soundtrack played lyrics referencing seduction
  • the second video showed the dentist in ordinary dress in a non-professional setting below a caption containing sexual innuendo that referenced oral examinations

What the Ontario dental regulator decided

The regulator determined that the videos were “sexualized, offensive and demonstrated a lack of professional judgement”, and “were directly linked to Dr. Chaban’s practice of dentistry”. It asserted that he had: 

  • contravened the regulator’s Social Media Advisory, which directed that dentists should avoid posting material online “that demonstrates, or appears to demonstrate, behaviour that might be considered unprofessional, inappropriate, or unethical”, and
  • violated the regulator’s Prevention of Sexual Abuse and Boundary Violations practice advisory (the “Prevention Advisory”), which “gives guidance to dentists that they should not tell sexually suggestive jokes”.

However, recognizing that the dentist had demonstrated some insight and professional accountability for his conduct, the regulator’s Inquiries, Complaints and Reports Committee (“Committee”) opted to rely on remedial measures instead of recommending disciplinary proceedings. The registrant was required to complete a specified continuing education or remediation program, and to attend for an oral caution.

Grounds for review – alleged unreasonableness

The dentist contended that the Committee acted unreasonably, in part by mistakenly believing that his professional biography was appended to the videos such that his practice was easily discernable.

What the Ontario Court decided

While the court agreed that his practice biography was indisputably not posted with the videos, this that was not a material error as:

[25]  The Videos themselves clearly identified their maker as “@doctorchaban”. Only a click or two away from the Videos, on TikTok itself, was Dr. Chaban’s profile. It sets out his first and last name, his age, his profession as a dentist and refers to Toronto. It was a matter of just a few further steps to obtain all of the details of Dr. Chaban’s dental practice by inputting his full name and profession into Google.

[26]  The Committee’s erroneous finding that Dr. Chaban’s actual practice biography was posted with the Videos is of no consequence. That is because of the internet accessibility of Dr. Chaban’s practice information, based on the information he posted about himself on TikTok. The Videos, along with Dr. Chaban’s TikTok profile, included all of the information required to easily find his practice information online.

[27] Further, the theme of each video centred on dentistry. The First Video showed Dr. Chaban masked, in scrubs, in an office, referring to himself as a doctor (“@doctorchaban”). The fact that his scrubs did not show his name is of no moment in light of the finding above. The Second Video, while devoid of dental dress or a dental office, refers to an oral dental exam and the poster as a “@doctorchaban”.

The court went on to find that the scope of the Prevention Advisory was broader than just sexual abuse against patients; included a requirement to maintain professionalism in written communication, including in content on social media. Just as a professional must maintain a workplace free of sexually suggestive jokes and materials that could cause discomfort or offense to patients or staff, the same obligation extends to the virtual realm. The regulator’s Social Media Advisory specifically warns that “[w]hen you are online, you must follow the same rules of professional conduct that guide you at work”. The circumstances grounded a finding that the videos harmed public confidence in both the dental profession and the registrant’s personal professionalism. 

The court concluded that the Committee’s decision was reasonable, and was neither disproportionate nor overly severe. It emphasized that the Committee’s decision did not impose any penalty on the registrant, but rather provided him with a remedial and educational consequence.

The direction for remedial and educational consequences follows a trend of health profession regulators in Ontario imposing similar consequences for professional conduct issues arising from social media use.

  • In Peterson v. College of Psychologists of Ontario2023 ONSC 4685, the College of Psychologists of Ontario required a registrant to complete a specified continuing education or remedial program regarding professionalism in public statements after a number of his social media and public appearance statements came under professional conduct scrutiny. 
  • Similarly, in Pitter v. College of Nurses of Ontario2022 ONSC 5513, the College of Nurses of Ontario directed that two nurses be cautioned and attend remedial education programs after they were determined to have publicly made statements or social media posts containing misinformation about COVID-19.

Both the Peterson and Pitter decisions were upheld on review by Ontario’s Divisional Court.  

The Chaban decision relied heavily on the regulator’s established policies and practice advisories regarding social media use, which indicates that a similar decision made by a regulator in BC may be assessed differently on review absent analogous practice guidance materials.

It remains the responsibility of a registrant to be familiar with their regulator’s policies regarding online activity in association with their professional practice, and to seek guidance as needed about what constitutes professional behaviour on social media. 

The pattern of remedial outcomes in Ontario also suggests a recognition that regulators and registrants are navigating a rapidly changing landscape of how social media is used and perceived by the public, with efforts on both sides to come to a reasonable set of boundaries for how professionalism should be extended into the virtual realm. There is no doubt that health professionals can play a positive role on social media – this was clear, for example, during the pandemic when health practitioners used social media professionally and responsibly to contribute to fighting COVID misinformation online. However, Chaban affirmed that there can also be risk of public harm even when a professional engages in conduct not directly aimed at patients. As the decision recognizes, “online privacy” is never absolute, and off-duty social media messaging can infect professional patient interactions and can make a patient reluctant to seek care.

Chaban v. Royal College of Dental Surgeons of Ontario, 2024 ONSC 1075

Sabrina Zhao