Canadian Journal of Law and Technology


legal relationships, universities


The legal relationship between a university and its students is becoming increasingly complex as the use of technology spreads. Accordingly, it is important to define a university’s responsibilities and legal boundaries in order to understand the liability universities can potentially incur when dealing with students. Each Canadian university is unique in its founding and enacting legislation, as will be discussed further later. The individuality of Canada’s universities means that the questions raised in this paper cannot be given answers that can necessarily be generalized across universities. The approach to analysis in this paper, however, is applicable to any of the Canadian universities. Therefore, this paper will demonstrate the analysis appropriate to any university’s legal relationship between itself and its students with respect to the use of the Internet by students in residence, occasionally using the specific example of the legislative and regulating environment surrounding the University of Western Ontario.

More specifically, this paper will ask: does the private viewing of online pornography by a student in his or her residence room constitute an act of sexual harassment, and if it does, is a university legally obliged to protect the other residential students from this harassment? Or, on the other hand, is the university legally obliged to protect the rights to freedom of expression and to privacy of the student viewing the online pornography?

In order to respond to these questions, three separate issues will be examined:

(1) What is the relationship between a university and Student A — the viewer of the pornography? Can a university regulate a student’s online conduct, and if so, which, if any, of the student’s rights are affected?

(2) If a university can regulate a student’s online conduct, but does not do so, can it incur liability? Does a university as an Internet Service Provider (ISP) have a responsibility to control e-mail use, access to Web sites, and the contents of files publicly available through file sharing programs?

(3) Thirdly, what different legal obligations exist — under contract law, tort law, the Canadian Criminal Code, or other statutes — on a university with respect to its relationship with Student B — the student claiming sexual harassment? Should a university, on any of these grounds, take responsibility for Internet content regulation in residences?