This case engages both legal and ethical obligations of engineering practice. Legally, the case shows a possible instance of “defamation,” that is, a false statement which, if treated as fact would inflict injury or damage to a person's character or reputation. Defamation of character typically occurs when a person (here, Engineer T) shares false and damaging information (a video on social media) as a fact (flawed and unsafe bridge design) with a third party (the public), thereby causing harm to an individual's reputation (Firm R)―or so one might claim. Although the complexities of defamation law go beyond the scope of the BER of Ethical Review’s (BER’s) consideration, both the law and ethics hold in common that it is important to differentiate between personal and professional opinion, because simply stating a personal opinion is not defamatory. Likewise, if a statement is verifiable and true, it cannot be defamatory.

Notwithstanding the fact that the truth serves as an absolute legal defense against defamation, professional ethics requires more of engineers – namely, that they perform their services under a standard of professional behavior that requires adherence to the highest principles of professional conduct. Engineers have an obligation per the NSPE Code of Ethics (the Code) —to speak out on matters of public policy. But this obligation is not absolute and must be exercised in a responsible and professional manner, as many past BER cases have shown.

BER Case 14-12 illustrated how an engineer having knowledge of any alleged violation of the Code shall report thereon to appropriate professional bodies (Code Section II.1.f), in particular when the safety, health, and welfare of the public are at stake (Code Section I.1). BER Case 14-12 involved Engineer A, who is a licensed professional engineer with expertise in structural engineering in State X and is visiting State Y, where Engineer A is not licensed. During the visit, a colleague of Engineer A asked Engineer A’s opinion about the structural design of a building renovation in State Y. Engineer A visited the site and informally they observed, what were, in their professional opinion, some technical inconsistencies regarding the structural design. Engineer A’s concerns were brought to the owner of the building being renovated. The owner then contacted the prime design engineer (Engineer C) responsible for the design of the building renovation in State Y, noting Engineer A’s observations. Following correction of the technical inconsistencies, Engineer C filed a complaint with the state engineering licensure board claiming that Engineer A was engaged in the unlicensed practice of engineering.

The BER found it was not unethical for Engineer A to offer their opinion without being licensed in State Y because of the potentially serious health and safety issues. However, the BER noted that Engineer A should have advised Engineer C of their observations. In arriving at this conclusion, the BER cited BER Case 11-3, where a different Engineer A (hereafter, Engineer A (11-3)) was retained to assure Code compliance on a project in State Y (in the U.S.) that was designed by a consulting firm in Canada. Engineer A (11-3) determined the Canadian firm’s design met all appropriate engineering code requirements, but they did not sign/seal the design because none of the engineers in the Canadian firm were licensed in the US. Engineer A (11-3) filed a written complaint against the Canadian firm for the unlicensed practice of engineering in State Y. Here, the BER found that Engineer A (11-3) did have an ethical obligation to report unlicensed practice, but out of respect for the engineers and the dignity of the profession, Engineer A (11-3) should have first advised the Canadian firm’s engineers of their findings.

In both BER Case 14-12 and BER Case 11-3, the competence of reporting engineer was not at issue, the claims against the violating engineers were deemed objective and truthful, and the BER noted it was not only ethical but obligatory for the engineers to report their concerns. The ethical error in both cases was the manner of reporting, specifically that the reporting engineers failed to first notify the responsible violating engineer of their findings (Code Sections III.1.f, III.7).

Another aspect of engineers making public statements centers on the motive for their claims. BER Case 84-6 introduced another Engineer A (hereafter, Engineer A (84-6)) who was a candidate for the state legislature from a district in which there is a substantial percentage of unskilled workers who are represented by a union. In a particular plant where many of these employees work, the third worker in a year was killed recently in an industrial accident. After many discussions between workers and management, the workers set up a picket line to protest what they claim are unsafe working conditions and alleged management indifference to employee safety. During the political campaign Engineer A (84-6) visits the picket site and participates without having visited the plant to investigate the specific conditions of the previous accident. With TV cameras focused on him, Engineer A (84-6) holds up a placard which accuses the company of callous disregard for the workers and then joins the protesting employees in the picket line.

The BER began its discussion by noting the Code encourages engineers to participate in civic affairs and to advance the safety, health and well-being of their community (Code Section III.2.a), this in recognition of the valuable and unique perspective of the engineer and the enormous contribution that the engineer can make to public policy debates. Simultaneously, the BER cautioned that an engineer’s participation in the sphere of public policy must be tempered by a sense of reason and rationality. In its analysis, the BER noted:

In sum, while the BER acknowledged Engineer A (84-6) was not an employee of the company but a candidate for office who was sympathetic to a particular cause; nevertheless, it was unethical for Engineer A (84-6) to accuse the company of callous disregard for the workers at the plant.

BER Case 07-8 offers an example of an engineer who publicly expresses criticism in the aftermath of a major bridge collapse. The facts are that, following construction, a bridge collapsed as a result of a structural failure. Several individuals are killed or injured and there is significant physical damage to the area surrounding the bridge. An investigation was conducted, but before the results of the investigation are reported, a settlement is reached concerning the bridge collapse and the record was sealed in perpetuity by a court of law. Several engineering educators involved in structural engineering research, including yet another Engineer A (hereafter, Engineer A (07-8), prepared a petition and presented it to public officials, requesting that the decision be reversed, calling the decision to seal the record “a brazen violation of engineering ethics and a hindrance to progress in engineering” since information that could be the subject of important research will be unavailable for study and research.

In consideration of the facts of BER Case 07-8, the BER found that there is nothing specific in the Code that compels an engineer or imposes any “duty to protest” situations or circumstances of this type. At the same time, there is nothing in the Code to prohibit or discourage such protest, other than duties flowing from various Code provisions relating to honesty, objectivity, confidentiality, maintaining the honor and dignity of the engineering profession, and other similar provisions. Accordingly, the BER found it was ethical for Engineer A (Case 07-8) to prepare a petition and present it to public officials, requesting that the decision be reversed, but it was not ethical for Engineer A (07-8) to call the decision to seal the record “a brazen violation of engineering ethics and a hindrance to progress in engineering.”

Two other BER cases warrant mention in this discussion.

In BER Case 84-1, Engineers A (hereinafter Engineer A (84-1) and B were presidents of engineering societies in the same state; the societies were engaged in a merger discussion. In A’s society magazine, Engineer A (84-1) discussed the merger and included statements that Engineer B felt impugned their good faith and conduct during the discussions. The case began with a discussion of the applicability of the Code to this situation. In BER Case 84-1, the BER stated that “[i]n matters of a purely private nature in which the individual may have participated as a citizen independent of the fact that such individual happens to be an engineer, we would agree that the Code does not apply.” Although the BER did not attempt to draw a line regarding application of the Code, in BER Case 84-1, they concluded that the facts led them to believe the Code did apply.

The BER noted that:

The ultimate question before the BER in BER Case 84-1 was “whether the various published statements, no matter how strongly stated are subject to ethical objection.” The BER concluded “while some or all of the statements at issue may have been overboard, and may have represented poor judgment, there is no basis to conclude that they were made maliciously. The better assumption, we believe, is that they were made sincerely ‘in the heat of battle,’ as it were.” Engineer A (84-1)’s published statements did not violate the Code.

BER Case 88-7 is the other instructive case. Renowned structural Engineer A (hereinafter Engineer A (88-7)) was hired by a newspaper to visit the site of a state bridge construction project; the project had a history of delays, cost increases and litigation resulting primarily from on-site safety accidents. In a series of articles, the newspaper alleged the major safety problems with the bridge jeopardized a successful completion date. Allegations of misconduct and incompetence were made against the project engineers and contractors. The state investigated, and Engineer A (88-7) stated that their report was intended to identify what they viewed as potential problems and was not intended to be conclusive. The BER was asked to determine if it was ethical for Engineer A (88-7) to perform an investigation for the newspaper as stated in the case.

BER Case 88-7 noted that engineers should “‘seek opportunities to be of constructive service in civic affairs and work for the advancement of the safety, health and well-being of their community.’ ([Code] Section III.2.a.).” The case also included an extensive accounting of BER cases where engineers publicly share professional opinions; that summary is left for readers to view in the case. In BER Case 88-7, the BER noted that Engineer A (88-7) was retained by a newspaper and was not what they termed a “disinterested party.” The BER concluded “[i]t was not unethical for Engineer A [(88-7)] to agree to perform an investigation for the newspaper in the manner stated but Engineer A [(88-7)] has an obligation to require the newspaper to state in the article that Engineer A [(88-7)] had been retained for a fee by the newspaper to provide her professional opinion concerning the safety of the bridge.”

The cited BER cases provide background for analysis of the present case. First, the BER must address the applicability of the Code in the present case. Is the posting purely a private matter in which Engineer T just happens to be an engineer? We also note that Engineer T’s post gathered hundreds of comments questioning the safety of the bridge, which is somewhat different than what occurred with the newspaper articles in BER Case 88-7. However, in some ways, the only difference is that it is easier to count the number of comments in a social media post than it was for reactions to a 1988 newspaper article.

In determining that the Code applied in BER Case 84-1, the BER noted “the basic issues did involve in a significant way the interests of the engineering profession, and that the [Code] is the proper authority to determine whether or not there was unethical conduct.” The BER went on to note that what “we have said is akin to a degree to the well-established principle that those who hold public office may properly be subject to more stringent criticism for their actions than those who are involved only in the area of purely private enterprise.” Likewise, in the instant case, Engineer T’s posting brought significant attention to the engineering profession, an engineering firm, and a particular project. Additionally, the facts state that Engineer T built a social media following based on engineering-related content, indicating Engineer T’s content relates to the interests of the engineer profession.

We also note that when BER Case 84-1 was written, there were speed bumps and barriers to mass communication such as newspaper editors and limited radio/tv time for a story. Today, anyone can put almost anything they want on a dozen different social media platforms and such content can go viral and reach a much wider audience without fact-checking or oversight before it is published. Therefore, it is even more important for an engineer to consider application of a higher standard than the general public when expressing opinions about engineering projects on social media as that opinion can be widely distributed and rereported as fact. For this reason, the BER believes the Code applies to Engineer T’s posting.

Further, engineers must be mindful of the way they express opinions. In the present case, Engineer T harshly criticizes Firm R’s work, suggesting that “any competent engineer” would know better. The BER finds this language mocking and derisive and therefore inconsistent with Code Sections III.1. e and III.1.f.

A third consideration is whether Engineer T is “qualified by education or experience in the specific technical fields involved” (Code Section II.2.a) to opine on whether Firm R’s bridge design is “flawed and unsafe.” The facts only state that Engineer T is a professional engineer who attended a public involvement meeting in which the client showcased the bridge project. We do not know if Engineer T is a structural engineer or a bridge engineer, nor do we know anything about their experience. This is not a trivial consideration. In all of the previously-cited BER cases, the engineers’ professional qualifications vis-a-via their public claims are not in question.

That being said, even if Engineer T is a practicing structural engineer and ostensibly qualified to hold a professional opinion about bridge design, was an “informal review” of the project at the open house sufficient basis to justify harsh public criticism of the design? Per Code Section III.2.b, “engineers may express publicly technical opinions that are founded upon knowledge of the facts and competence in the subject matter.” In the previously-cited BER cases 84-6 and 88-7, the engineer’s scope of work relative to making public claims is a significant concern. Absent further details, the BER does not believe Engineer T’s informal review of the bridge design satisfies the ethical threshold of “knowledge of the facts.”

This brings up Engineer T’s motive for recording and posting the video that harshly criticizes Firm R’s work. The facts are silent on motive, other than to imply Engineer T may have had some concern for the public safety, health, and welfare. But given that Engineer T’s comments were a derisive criticism of Firm R and that they did not voice concerns directly to either Firm R, or the client, or to other appropriate authorities suggests that Engineer T was seeking to promote their own interest, not that of the public, and that they did so at the expense of the dignity and integrity of the profession (Code Sections III.1.e, III.1.f).

Finally, there remains a question as to the truthfulness of Engineer T’s claims that the bridge design is flawed and unsafe and that Firm R’s engineers are incompetent. Truthfulness is perhaps the most significant question in this matter, since the answer goes directly to Code Sections I.1, I.3, and most of the other cited ethics provisions. The BER notes that the facts do not resolve this key question. But even if Engineer T’s claims are true and verifiable, their method of reporting their views does not comply with the Code. Further, if Engineer T’s claims are false, the ethics violations become more egregious, and Engineer T may also be legally liable for defamation of character.

To summarize, assuming that Engineer T is a structural engineer qualified to judge the safety of a bridge, sufficient information cannot be found in a public open house to determine that the design is flawed and unsafe. If the open house materials gave Engineer T concern about the bridge’s safety, Engineer T should have first reached out to Firm R to voice their concerns. If a detailed review confirmed Engineer T’s concerns with the bridge’s safety and if Firm R was unreceptive to the safety issues, then Engineer T should have brought these concerns to the appropriate professional or regulatory authorities. By solely utilizing social media, Engineer T appears more concerned with gaining clout and did not bring dignity to the engineering profession. Safety concerns should be addressed in a thoughtful, formal manner and not through sensationalism.