Defamation

Facebook defamation decision something to Twitter about

A recent decision by the Supreme Court of British Columbia has important implications for defamation through social media, says Toronto commercial litigation and defamation lawyer Brian Radnoff.

Pritchard v. Van Nes, 2016 BCSC 686 (CanLII), involved a spat between neighbours in Abbotsford, B.C., which escalated in 2014 when the defendant made posts on her Facebook page that strongly suggested that the plaintiff, a music teacher, was a pedophile.

Radnoff, a litigation partner at Dickinson Wright, says the court found the defendant was not only liable for the defamation posted on her Facebook page, but also the republication of those comments by her friends and others, including in subsequent emails, as well as subsequent libelous comments from her friends in responses to the defendant’s original posts.

“The comments made about the plaintiff were very negative,” Radnoff tells AdvocateDaily.com. “Although she deleted the post and the subsequent comments and responses a day or so later, the damage was done.”

“The first interesting thing, from a lawyer’s perspective, is that the court found her directly liable for the republication of her Facebook posts, although that’s not particularly surprising,” he says. “The takeaway is that you are generally responsible for your post as well as any reposting by your friends or followers. For example, if you Tweet something defamatory, and someone else retweets it, you are likely also responsible for that defamation.”

It’s important because the premise of Facebook, as well as most social media, is the sharing of thoughts and ideas which invite reposting or republishing, he adds.

“By publishing a comment, you’re asking for it to be republished,” Radnoff says. “Republication is the natural and ordinary result of most social media posting.”

Another interesting aspect of the decision, he says, is that you can also be held liable for further defamations from other people commenting on your post.

“In fact, the court sets a test for establishing third-party liability for defamatory material,” he says. “It has three elements as cited: ‘1) actual knowledge of the defamatory material posted by the third party, 2) a deliberate act that can include inaction in the face of actual knowledge, and 3) power and control over the defamatory content. After meeting these elements, it may be said that a defendant has adopted the third-party defamatory material as their own.’”

“This is the first decision in Canada to clearly set out a test for liability in this situation,” says Radnoff, who did not act in this matter and makes his comments generally. “The plaintiff was liable for these third-party comments because she knew about them, responded to them with further defamatory comments and could have, but didn’t, delete them.”

Despite the grievous harm done to the plaintiff’s reputation as a teacher in a small community, Justice Anthony Saunders ruled aggravated damages weren’t appropriate. However, given the seriousness of the allegations and the extent of the harm suffered, a $50,000 award of general damages was appropriate

The court also awarded punitive damages: “I further find this an appropriate case for an award of punitive damages, as a means of rebuking the plaintiff for her thoughtless, reckless behaviour,” wrote Saunders. “She acted without any consideration for the devastating nature of her remarks. A punitive damages award must be proportionate to the defendant’s blameworthiness, which in this case is high; the defendant’s vulnerability, which is also high; the harm suffered by the plaintiff, which has been considerable; and the need to publicly denounce the defendant and thus bring to the notice of the public the dangers of ill-considered remarks being made in social media and the serious consequences of such conduct.”

The plaintiff was also awarded punitive damages of $15,000, plus costs to be considered at a later date.

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