In the age of social media, many social media users may be surprised to discover that “private” ranting or venting on a Facebook profile page, a public Facebook group, or even a group of private friends may in fact result in defamatory comments. Defamatory comments are those that have the effect of lowering the reputation of the subject of those communications. There is a delicate line between our rights under the Charter of Rights and Freedoms to provide for freedom of speech in contrast with comments that constitute defamatory remarks. As a consequence of defamatory comments, the unwitting commenter(s) may be subject to costly, stressful, and time consuming litigation in connection with the injured targets of those defamatory comments.
In Canada and abroad, there have been several interesting cases that emerged from the intersection of social media and the law of defamation. The law on defamation in the social media context, especially Facebook postings, was recently canvassed last year in forty page decision of the British Columbia Supreme Court in Prichard v. Van Nes, 2016 BCSC 686, which will be the focus of this posting.
By way of background, the Defendant wrote on her Facebook page that the Plaintiff – who was a local teacher and her next door neighbour – had been videotaping her and her children using surveillance equipment under the guise of a mirror in his backyard. The Defendant proceeded to take to Facebook to post a photo of the mirror and aired her ruffled feelings. The Defendant insinuated that, amongst other things, that the Plaintiff was a pedophile and engaged in pedophile-like behaviour. The Defendant noted that the Plaintiff’s conduct was troubling, as he worked as a public school teacher in the Abbotsford school district. For the next 21 hours, the posting triggered 57 further posts, 48 of which were made by 36 different individuals who were connected as Facebook friends with the Defendant and 9 by the Defendant herself. To be clear, the Plaintiff was not videotaping the Defendant or her children. The mirror was placed on the Plaintiff’s house for feng shui purposes.
It is important to underscore that the Defendant had in excess of 2,000 Facebook friends with her privacy settings set to public. Accordingly, these comments were open to the entire world. After the Plaintiff learned about the defamatory comments and a complaint was made to the Plaintiff’s principal, the Plaintiff and his wife filed a police complaint against the Defendant. The police attended the Defendants home regarding complaint and the defamatory comments were soon deleted from the Defendant’s Facebook account approximately 27 hours later. By then it was too late. The comments had already gone viral: the postings circulated amongst her Facebook friends and shared to other’s Facebook pages.
Justice Saunders held that legal test to establish the tort of defamation was summarized in the Supreme Court of Canada decision Grant v. Torstar Corp, 2009 SCC 61 (CanLii) (“Grant”) . The legal test for defamation from Grant is as follows: the plaintiff must prove on a balance of probabilities that (1) the impugned words would lower the plaintiff’s reputation in the eyes of a reasonable person; (2) the words referred to the plaintiff; and (3) the words were published (e.g. communicational to at least one person other than the plaintiff) then falsity and damages are presumed.
While there are defenses to defamation which might have been raised, it appears that the Defendant did not bother to raise any defenses at trial nor file a Response to Civil Claim. Justice Saunders examined the defamatory words in their natural and ordinary meaning, as well as by innuendo (e.g. what the words were intended or meant to mean). Justice Saunders had little difficulty in holding the Defendant liable for her own defamatory comments within the current state of defamation law. Justice Saunders, however, decided to incrementally extend the law that the Defendant was held liable for the republication of her defamatory comments by others, as well as liable for third parties who shared those defamatory comments about the Plaintiff.
In considering these facts, other factors, and the real and possible harm to the Plaintiff’s reputation, the court awarded the Plaintiff $50,000 in damages. As a teacher, the Defendant’s comments that the Plaintiff was a pedophile or engaged in pedophic-like behaviour and unfit to teach could have tremendously negative consequences on both his career as a teacher, but also his dignity. Due to the Defendant’s reckless behaviour in making the defamatory comments, the court awarded a further $15,000 in punitive damages. While Justice Saunders considered imposing special costs, he held that the comments arose more out of stupidity rather than malice. Had the Plaintiff proved malice, Justice Saunders would have awarded increased costs against the Defendant.
Cyber, social media and defamation law continues to develop through the courts, but the decision of Pritchard v. Van Nes make it abundantly clear that the Courts are becoming more comfortable with and adapting to new realities of social media and defamation, and holding those who make defamatory comments accountable by the Courts for one’s own comments and the comments of others in appropriate circumstances. As a takeaway, this decision is an important reminder that a person may be held responsible not only for his or her own defamatory comments on social media, but also liable to friends and/or followers who share the defamatory comments by way of their own Facebook page, to another group, or even a space where the defamatory comment or comments are publically accessible.
Cody Reedman is a lawyer at Becker & Company who focuses his practice on a diverse area of civil litigation practice, including defamation matters. This post is not intended to be legal advice and is for general legal information only. Should you wish to speak to a lawyer at Becker & Company regarding a matter involving defamation please contact our office for an initial free consultation.
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