Defamation in the Facebook era

A recent B.C. Supreme Court decision issues a warning to social network users: if you can’t post something nice, then don’t post at all

Tread carefully when sharing updates on Facebook’s open forum. That’s the takeaway from the Supreme Court of British Columbia’s recent decision to find a defendant liable for not only her defamatory statements but also the comments made by her Facebook “friends.”

Facebook provides an informal forum to easily share thoughts with a large audience. It’s also a place where defamatory statements can rapidly distort and multiply, resulting in significant and potentially damaging consequences for the publisher.

In  Pritchard v. Van Nes, 2016 BCSC 686, the defendant, Ms. Van Nes was found liable for her defamatory statements, the republication of the statements by her Facebook friends, and the defamatory comments made by her Facebook friends.

The plaintiff, a middle school music teacher, was a neighbour to the defendant Ms. Van Nes. The two families had an ongoing dispute over several issues and at the suggestion of the municipality, the plaintiff’s family took photographs and video recordings to document the activities in question.

Ms. Van Nes took to Facebook to “vent,” writing the following and posting two photographs of the Pritchard’s backyard, in which a mirror had been hung at the rear of the house:

“My neighbour has mirrors hanging outside his home…[he] also videotapes my kids in the backyard 24/7!”

“Some of you who know me well know I’ve had a neighbour videotaping me and my family in the backyard over the summers…. Under the guise of keeping record of our dog…”

“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 behavior…”

“Not to mention a red flag because [he] works for the Abbotsford school district on top of it all!!!!”
Ms. Van Nes had 2,059 Facebook friends, and her privacy settings were set to “Public.” Her original post resulted in 58 further posts, 48 made by 36 different Facebook friends and nine made by Ms. Van Nes herself. Many of the posts stated that the plaintiff was a “creep” or something similar, and insinuated that the plaintiff was a pedophile.

“Why don’t we let the world know?” commented a Facebook friend. The following day this friend contacted the principal of the school where the plaintiff worked to advise that the plaintiff was a “potential paedophile.” This email, and the rapid spread of Facebook comments, severely impacted the plaintiff’s role as a teacher and his family’s comfort in their community.

An Exception to the Rule

The court found that there was no video camera on the plaintiff’s property, and the mirror was a feng shui decoration, not a tool for spying on the defendant.

Unsurprisingly the court found Ms. Van Nes liable for her own defamatory statements. However, the court also found her liable for the republication of her statements by her Facebook friends.

Generally, a person is not liable for the republication of his or her defamatory statement by someone else. In this case, however, the exceptions to that rule applied. Justice Saunders stated:

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. This is particularly true in the case of the defendant, who had no privacy settings in place and who had more than 2,000 “friends.” The defendant must be taken to have implicitly authorized the republication of her posts.

This reasoning was stretched even further in finding Ms. Van Nes liable for her Facebook friend’s republication of the defamatory statements in the email to the school principal. The court found that Van Nes had “constructive knowledge” that her friend intended to “let the world know,” and her silence following this statement served as authorization of republication.

Even more surprising for Facebook users was the court’s determination that Ms. Van Nes was liable for the defamatory statements made by her friends on her Facebook page. The court found that Ms. Van Nes knew that her page contained defamatory statements made by her Facebook friends, and she did nothing to remove them, although she could have.

The Court said that even if Ms. Van Nes didn’t actually know about the defamatory statements made by her Facebook friends, she “ought to have anticipated such posts would be made” because of the nature of Facebook and her own contribution to the posts.

To address the concern that this “ought to know” test was too broad, the court found that a Facebook user should only be liable for friends’ defamatory statements in circumstances in which the original post is inflammatory and expressly or implicitly invites defamatory statements by others, or where the user actively participates in such a dialogue through comments and replies.

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

The court’s decision delivers fair warning to users who take to Facebook to vent frustrations and use the platform to name and shame—the consequences could really add up.

Scott Marescaux is a lawyer at Hakemi Ridgedale LLP. He represents corporate and individual clients in a variety of commercial litigation matters, including contractual disputes, commercial real estate, defamation, expropriation and construction.