A decision from the British Columbia Supreme Court (Pritchard v. Van Nes, 2016 BCSC 686) should provide a warning to all those who view social media as a platform to vent their frustrations.
This decision arises from conflict between neighbors that escalated substantially over a number of years.
The Defendant neighbor, Van Nes, took to Facebook to “vent” about her neighbor, Pritchard, making a number of posts on Facebook calling her neighbor a “nutter” and a “creep” and using a system of cameras and mirrors to keep her backyard and her young children under 24 hour surveillance. In total, the court found that the Defendant’s initial posts and the comments made by her friends to these posts bore the meaning that the Plaintiff was a pedophile.
Van Nes had more than 2000 Facebook friends. In addition, she had set her privacy settings to public to allow for her posts to be viewed by all Facebook users.
While the posts were only on the Defendant’s Facebook page for roughly 27½ hours before being removed, there were a number of comments posted by the Defendant’s Facebook “friends”, with these friends’ comments containing more explicit denunciations of Pritchard’s alleged behavior.
In addition, a number of the Defendant’s Facebook friends “shared” the Defendant’s posts on their own Facebook pages. One of the Defendant’s Facebook friends copied one of the Facebook posts and emailed it to the principal of the school where Pritchard was employed as a teacher.
The Defendant did not defend the action so default judgment was entered. The court was then tasked with assessing damages, and ultimately awarded $50,000 in general damages for defamation plus $15,000 for punitive damages.
Defamation x 3
The court found there were three methods by which the defamation took place:
- through Van Nes putting her own remarks on her Facebook page;
- through republication of Van Nes’ remarks by her Facebook friends sharing them on their own Facebook pages and, in one case, by emailing her comments to Pritchard’s employer; and
- through the comments posted by Facebook friends to Van Nes’ Facebook posts.
In analyzing these three methods of defamation in this case, the court raised interesting issues for cyber-defamation, especially in the context of social media.
First, it addresses whether social media facilitates or encourages the distribution of defamation.
Second, it broadens the risk of incurring liability for defamatory comments made by others on your social media account
Does Social Media Facilitate Distribution of Defamation?
In this case, the court found that Facebook in particular facilitates the distribution of comments, photographs, videos and links:
 In my view 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 2000 “friends”. The Defendant must take must be taken to have implicitly authorized the republication of her posts……
Arguably, these comments could equally apply to many other social media platforms that electronically connect groups of people with an unrestricted forum to express opinions and statements openly.
Applying the court’s reasoning in this case, if you are choosing to express yourself on such a social media platform, you are doing so with the intention and anticipation that this expression will be disseminated, at the very least, to your connections on this forum, and quite likely beyond that.
In addition, you can be found to have implicitly authorize republication of your posts beyond your own immediate circle of connections on the social media site.
This implicit authority to republish can have significant consequences if your posts contain anything defamatory.
Does Social Media Increase Your Risk of Liability for Comments of Others?
The court then tackled whether Van Nes was liable for the defamatory remarks posted by her friends as comments on her Facebook page.
It recognized that liability for third-party defamatory comments on one’s personal account, whether on Facebook or another Internet-based platform, is still an emerging legal issue in Canadian law.
Recent cases, however, have established that a defendant can be found to have adopted the third party defamatory material as their own if the following three elements are established:
- 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 this case, the court loosened the first of these criteria for users of social media accounts.
It said there ought not to be a legal requirement for a defendant having actual knowledge of the existence of defamatory comments by her friends. Rather, in this case, Van Nes ought to have anticipated such posts would be made.
The court came to this conclusion for two reasons: the nature of a social media platform, and the content of Van Nes’ contribution to the posts.
The court found that this combination created a “reasonable expectation” that further defamatory statements would be made by Van Nes’ friends, and that she should share in the responsibility for these friends’ statements, whether she was aware of them or not.
 …..The user hosting the page of the social medium such as Facebook … is providing a form for engagement with a circle of individuals with whom you share some degree of mutual familiarity…
 … [Van Nes] ought reasonably to have expected her “friends” to make sympathetic replies. The “friends” comments were not unprovoked reactions; they were part of the conversation. And then, when they did comment, [Van Nes] – far from being a passive provider of an instrument for comment – continued as an active participant through making replies, prompting further comment. Those replies add fuel to the fire, compounding the chances of yet more defamatory comments be made.
 In other words, I would find that the nature of the medium, and the content of [Van Nes’] initial posts, created a reasonable expectation of further defamatory statements being made. Even if it were the case that all she had meant to do was “vent”, I would find that she had a positive obligation to actively monitor and control posted comments.… The defendant ought to share in responsibility for the defamatory comments posted by third parties, from the time those comments were made, regardless of whether or when she actually became aware of them.
It is important to note that in discussing the above, the court was very clear to distinguish the social media users from the social media platform providers. Therefore, the application of this case as a precedent on which to find liability for third party comments on the “reasonable anticipation” that such comments would be made, whether you are aware of them or not, is limited to users of social media only.
That said, this decision should set alarm bells clanging for social media users.
At the very least, it places a heavier burden of monitoring your account for defamatory replies, reactions or comments to the material you put on your social media page. On a social media platform, a user can no longer avoid liability for defamatory third party responses to their posts by ignoring their social media page. Even swift identification of such defamatory third party content, and perhaps swift removal, may not be enough to avoid liability. The court specifically found that Van Nes ought to “share responsibility” with the third party posters, even if she was unaware of the defamatory third party comments. She ought to have reasonably expected it. This clearly expands the potential for liability of social media users for third party defamatory comments.