2016 April 20

Pritchard v. Van Nes, 2016 BCSC 686

The British Columbia Supreme Court concluded the defendant was liable to the plaintiff in damages, among other things, for republication within Facebook and for republication through email. The Court stated that “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 republication of her posts.” The Court concluded that the defendant was liable for an email by a third party republishing the defendant’s own defamatory Facebook attacks, stating that “the implied authorization for republication that exists as a consequence of the nature of social media, and the structure of Facebook, is not limited to republication through the social media only.” The Court also held that the defendant was given effective notice by the third party that he intended to republish her defamation.

The Court further concluded that the defendant was liable for defamatory third party Facebook comments, stating: “The user hosting a page of a social medium such as Facebook … is providing a forum for engagement with a circle of individuals who may share some degree of mutual familiarity.” The Court considered that the defendant was “far from being a passive provider of an instrument for comment” and that the contents of her initial posts “created a reasonable expectation of further defamatory comments being made.” The Court held, however, that the imposition of liability should be limited to “situations where the user’s original posts are inflammatory, explicitly or implicitly inviting defamatory comment by others, or where the user thereafter becomes an active participant in the subsequent comments and replies.” “It does no harm to the integrity of defamation as a separate tort to extend the use of foreseeability by making it a test for liability for third-party comments.“