While social media has quickly become a popular and efficient way to keep in touch, it can be dangerous to forget the public nature of this technology. Facebook and Twitter users are often bolder behind a screen, making statements that they would never say in person. Defamatory statements can spread swiftly across and among social networks, exponentially increasing the likelihood of false information damaging the integrity of an innocent person. This area of law is evolving quickly in courts around the world, and a new development from BC may have chilling consequences for angry social media users.
Neighbours’ Dispute Leads to Defamation
Pritchard v. Van Nes, 2016 BCSC 686 sets a new standard for Facebook users who publish comments made by others or who post comments that then attract a defamatory response.
The background to this case is a longstanding neighbourly conflict that was fought with videos and posts, in part through Facebook.
After approaching Van Nes about a noisy waterfall in their backyard, Plaintiff Douglas Pritchard was instructed by the municipality to document his complaints that the water feature was disrupting his family’s sleep during the night. After Pritchard captured photos and video of the water feature, Van Nes took to social media to “vent” her frustrations. In a post to Facebook, Van Nes stated “[Pritchard] videotapes my kids in the backyard 24/7!”
One member of the community shared the post with the principal of the school where the plaintiff taught music, accusing the Plaintiff of being a “potential paedophile”. The school looked into the matter and dismissed the unjustified allegations.
The false claim remained on Facebook for over 27 hours, prompting comments from 37 other users, including further allegations and insinuations of paedophilia. As a result, Pritchard was fearful of properly teaching hand placements on instruments to students and he was the target of judgmental students, parents, and neighbours. At one point, the plaintiff passed on submitting a resumé because of the humiliation he anticipated.
[Pritchard] withdrew from his participation in school extra-curricular activities, grew anxious in interacting with students, felt reluctant to continue with his career and stated that he had encountered a number of situations where parents expressed distrust in him or withdrew their children from his programs.
The judge found the defendant liable for her post and comments that were potentially published to the defendant’s almost 2,060-person friend list, and like a multiplier effect, to those friends’ friends. Even more aggravating is that the defendant’s privacy settings were set to public and therefore potentially viewable by all members of the Facebook community.
The court also found that the defendant was liable for the words and actions of her friends. Usually, a person isn’t responsible for other people that repeat or republish the original statement unless the natural and probable repetition is a result of the original defaming statement. Essentially, if it is probable that people will repeat the defaming statement, the statement maker may be liable. The Justice said this about Facebook with regards to this ‘test’, “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.” In simpler words, the defendant is liable for her friends’ defamatory statements in multiple ways.
The court held that the defendant ought to have foreseen that someone would notify the principal where the plaintiff works. That friend even posted their future actions on Facebook without any reply from the defendant. Her silence was deemed to be an implicit approval of the friend’s repetition. The defendant knew that her Facebook post had several defamatory statements or comments in it, but she did not attempt to prevent or remove any of them, despite having the ability to do so. This was an implied endorsement to publish, repeat or create defamatory statements. The Court advised that a social media user should be liable when a defamatory post is made and the statement maker expressly or implicitly encourages defamatory comments by others. As noted above, this may be through silence or continuing participation in the discourse. This seems to be a departure from existing law and may very well be appealed. For now, this decision may chill angry social media users as one can now become responsible for others posting angrily in response back to you. This case will apply to other social media and websites, far beyond the vast reach of Facebook.
The court awarded $50,000 in general damages, $15,000 in punitive damages, and $2,500 for the nuisance claim. The judgment also orders the Van Nes household to turn off the waterfall in their backyard between 10 PM and 7 AM.