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Modern Day Defamation

Modern Day Defamation: Facebook Posts

Pritchard v. Van Nes, 2016 BCSC 686 (CanLII)

Social media is very easy to use and a quick way to communicate. Social media is also risky. People may feel bolder in their tweets and posts than they would otherwise. Defamatory statements are sometimes as easily posted as “likes”. When others posts defamatory comments in response to your posts or forward your defamatory posts, the law may hold a user of social media responsible.

Pritchard v. Van Nes2016 BCSC 686A, is a British Columbia court case that holds defamatory Facebook users to liable for not only their own posts, but for comments made by others on those posts. It sets a new standard for Facebook users who publish comments made by others on their own Facebook page or post or who post comments that then attract a defamatory response.

The background to this case is a long standing neighbour conflict that was fought, with videos and posts, in part through Facebook. The posts included a picture of the plaintiff’s backyard made by the Defendant, Van Nes, with a comment “Now that we have friends living with us with their 4 kids including young daughters we think it’s borderline obsessive and not normal adult behaviour… Not to mention a red flag because Doug works for the Abbotsford school district on top of it all!!!!” 36 of the defendant’s friends commented supporting the defendant’s original inference and calling the neighbour, the plaintiff, a creep. One of the posting social media users by letter reached the principal of the school where the plaintiff taught music. The school dismissed the allegations in the letter that the “potential paedophile.”

Within just over a day, the post was removed along with all the comments; however, eliminating the source of the post does not eliminate all the previous copies that were shared. Needless to say, the plaintiff experienced the repercussions of this post in many different ways. He was fearful of properly teaching hand placements on instruments to students and he was the topic of judgmental students, parents and neighbours. At one point, the plaintiff passed on submitting a resumé because of the humiliation he may face.

The judge found the defendant liable for her post and comments that were potentially published to the defendant’s almost 2,060-person friend list, and like a multiplier effect, to those friends’ friends. Even more aggravating is that the defendant’s privacy settings were set to public and therefore viewable by all members of the Facebook community.

The court also found that the defendant was also liable for the words and actions of her friends. Usually, a person isn’t responsible for other people that repeat or republish the original statement unless the natural and probable repetition is a result of the original defaming statement. Essentially, if it is probable that people will repeat the defaming statement, the statement maker may be liable. The Justice said this about Facebook with regards to this ‘test’, “the nature of Facebook as a social media platform and its structure mean that anyone posting remarks to a page must appreciate that some degree of dissemination at least, and possibly widespread dissemination, may follow.” In simpler words, the defendant is liable for her friend’s defamatory statements in multiple ways.

The court held that the defendant ought to have foreseen that one friend would notify the principal where the plaintiff works. That friend even posted their future actions on Facebook without any reply from the defendant. Her silence was deemed to be an implicit approval of the friend’s repetition. Secondly, the defendant knew that her Facebook post had several defamatory statements or comments in it but she did not attempt to prevent, stop or remove any of them, despite having the ability to do so. Similarly to the first issue, this was an implied endorsement to publish, repeat or create defamatory statements.  The Court advised that all social media users, not only Facebook, should be liable when a defamatory post is made and the statement maker expressly or implicitly encourages defamatory comments by others. As noted above, this may be through silence or continuing participation in the discourse. This seems to be a departure from existing law and may very well be appealed. For now, this decision may chill angry social media users as one can now become responsible for others posting angrily in response back to you. Also to keep in mind, this case will apply to other social media and websites, far beyond the vast reach of Facebook.

The court awarded $50,000 in general damages and $15,000 in punitive damages.

This  post was contributed by Roelf Swart, OTLA Blog Committee member and lawyer practicing with Elkin Injury Law in St. Catharines, Ontario.

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