A Legal Framework to Govern Online Political Expression by Public Servants

Clarke, Amanda & Benjamin Piper. 2018. "A Legal Framework to Govern Online Political Expression by Public Servants", Canadian Labour and Employment Law Journal, 21(1), 1-50.

50 Pages Posted: 11 Oct 2018

See all articles by Amanda Clarke

Amanda Clarke

School of Public Policy and Administration, Carleton University

Benjamin Piper

National Judicial Institute

Date Written: May 14, 2018

Abstract

This paper considers the extent to which public servants should be allowed to engage in political activities in online fora such as Facebook, Twitter, and YouTube. The question of the appropriate balance between the principle of political neutrality binding public servants and their Charter-protected right to political expression has been extensively addressed in the case law. However, the framework set out in the existing jurisprudence was developed in the context of more traditional forms of political engagement, and fails to provide clear guidance in an age when the political activities of public servants, like those of Canadians as a whole, have to a large degree migrated to social media and other platforms on the web. In an effort to remedy this deficiency, the authors lay the foundation for a revised framework for assessing the permissibility of online political activity by public servants, consisting of four analytical factors: the level and nature of a public servant’s position; the visibility of the online activity; the substance of the online activity; and the identifiability of the online actor as a public servant. Adopting this test, the authors contend, would enable adjudicators to strike a reasonable balance between freedom of expression and the principle of political neutrality, by recognizing that in today’s world both politics and life as a public servant play out online.

Keywords: Westminster system, political neutrality, social media, digital government, public sector employment

Suggested Citation

Clarke, Amanda and Piper, Benjamin, A Legal Framework to Govern Online Political Expression by Public Servants (May 14, 2018). Clarke, Amanda & Benjamin Piper. 2018. "A Legal Framework to Govern Online Political Expression by Public Servants", Canadian Labour and Employment Law Journal, 21(1), 1-50. . Available at SSRN: https://ssrn.com/abstract=3251375

Amanda Clarke (Contact Author)

School of Public Policy and Administration, Carleton University ( email )

Ottawa, Ontario
Canada

Benjamin Piper

National Judicial Institute ( email )

Toronto
Canada

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