In the recent decision of Pritchard v Van Nes, 2016 BCSC 686, the Court was faced with the issue of defamation over social media. Defamation is the act of publishing a statement that has the effect of lowering or ruining the reputation of an individual in the eyes of a reasonable person. Justice Saunders for the Supreme Court of BC ultimately found the defendant liable for $67,000 for her comments, which she described as “venting”, on Facebook. The result is a cautionary tale to those who use social media platforms such as Facebook and Twitter to, as the old idiom goes, “air out their dirty laundry”.
In what may be perceived as a safe environment to discuss pressing concerns with friends, one must be ever mindful of how those discussions may effect an innocent third party. In the Pritchard case the defendant, was a real estate agent with over 2000 Facebook “friends” and a profile open to the public. Her and her neighbour, the plaintiff, had an acrimonious relationship that eventually led the defendant to incite a maelstrom of controversy on Facebook.
Justice Saunders found that her comments accused the plaintiff of being a “nutter” and a “creep” when she erroneously stated that the plaintiff was “using a system of cameras and mirrors to keep her backyard, and her children, under 24-hour surveillance”. Justice Saunders was very quick to state from the outset that the defendant’s allegations and attacks on the plaintiff’s character “were completely false and unjustified”. However, despite her baseless allegations, the defendant’s Facebook friends took this as a call to action which only aggravated the situation. Their comments snowballed out of control and, in just over 24 hours, the plaintiff’s “stellar reputation” as a respected and admired music teacher had been completely destroyed.
The Courts are certainly concerned with the ease by which the internet can assist someone in so effectively and instantaneously damaging the good reputation of an innocent person. At paragraph 119 of the Pritchard case, Justice Saunders stated as follows:
… In my view the potential in the use of internet-based social media platforms for reputations to be ruined in an instant, through publication of defamatory statements to a virtually limitless audience, ought to lead to the common law responding, incrementally, in the direction of extending protection against harm in appropriate cases. …
In recognition of the Court’s increasing duty to respond to this discouraging reality, Justice Saunders found the defendant liable for not only her own defamatory comments, but also for the comments made by her Facebook “friends”. The Court set out the following test for liability for another person’s comments:
- Actual knowledge of the defamatory material posted by the third party,
- A deliberate act that can include inaction in the face of actual knowledge, and
- Power and control over the defamatory content.
In a nutshell, in most conceivable situations you will have control over your Facebook page. As a result, if you incite comments from others and, after viewing them, fail to delete them within a reasonable time, you could be liable for those comments.
In today’s Digital Era, the ease, affordability and anonymity by which someone can access the internet and, more particularly, the volatile sharing capacity of social media outlets such as Facebook and Twitter raises legitimate concerns regarding defamation. While Facebook and other social media sites provide a forum to post your views to the world at large, your ability to use those forums comes with the responsibility to make sure that you do not defame innocent parties. Now, with the recent decision of Pritchard ̧ it also means that you are responsible for making sure others don’t post defamatory comments on your pages.
As a result of Pritchard, we can expect an increase in this type of litigation. We can also expect continued developments in the law of internet defamation to protect innocent victims such as Mr. Pritchard as the Court incrementally responds to the ever evolving connectivity power of social media.
By: Brian Vickers