Facebook Posts - Re: Defamation

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-24
CLNP Page ID:	1776
Page Categories:	[Defamation]
Citation:	Facebook Posts - Re: Defamation, CLNP 1776, <4E>, retrieved on 2024-11-24
Editor:	Sharvey
Last Updated:	2021/10/15

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Pritchard v. Van Nes, 2016 BCSC 686 (CanLII)

[63] There are three modes in which the defamation took place. There are Ms. Van Nes’ own remarks, published by her to her own Facebook page; there is the republication of Ms. Van Nes’ remarks, as they propagated through Facebook and, in one case, through email; and there are defamatory remarks made by third parties in reaction to Ms. Van Nes’ post. The plaintiff submits the defendant is liable for all defamation that occurred in these three modes.

Defendant’s Liability for her own Facebook Posts

[64] The elements required to establish a claim in defamation were summarized in Grant v. Torstar Corp., 2009 SCC 61, at para. 28:

[28] A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed, though this rule has been subject to strong criticism… . (The only exception is that slander requires proof of special damages, unless the impugned words were slanderous per se… . The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability.

[Citations omitted.]

[65] I find Mr. Pritchard has proven that Ms. Van Nes’ initial Facebook posts and her subsequent replies to her “friends”’ comments were defamatory, in that they tended to lower the plaintiff’s reputation in the eyes of a reasonable person. The ordinary and natural meaning of Van Nes’ comments unequivocally described Mr. Pritchard as a “nutter”, a “creep”, and an abnormal person.

[66] Liability for defamation also arises in this case through the innuendo of the defendant’s words. An innuendo is made where the defamatory meaning of words arises from inference or implication: Hodgson v. Canadian Newspapers Co., (1998), 1998 CanLII 14820 (ON SC), 39 OR (3d) 235 (Ont. Gen. Div.); rev’d in part on other grounds, [(2000), 2000 CanLII 14715 (ON CA), 49 OR (3d) 161; leave to appeal ref’d [2000] S.C.C.A. No. 465. The innuendo must be one that a reasonable reader would draw from the words and it must not be one guided by any special knowledge, legal or otherwise: Gatley on Libel and Slander, 9th ed. (1998: Sweet & Maxwell), at 82, §3.15.

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[80] Mr. Pritchard provided some evidence to the court, based on his personal knowledge, as to the operation of Facebook. No expert evidence was tendered. In my view, social media platforms and applications, Facebook in particular, are so ubiquitous that the court is able to take judicial notice of some aspects of their nature and operation.

[81] First, it is uncontroversial that the distribution of information – comments, photographs, videos, links to items of interest – amongst users is fundamental to the use of a social media platform such as Facebook.

[82] Second, Facebook in particular facilitates such distribution through its structure or architecture. An individual user’s posts to their own page are automatically shared with “friends” who are linked to the user’s page. As “friends” react by commenting, the “friends”’ comments may be spread automatically to “friends of friends”. Such comments are solicited implicitly through the medium’s tools that allow “Comment” on a post and “Reply” to a comment (not to mention soliciting endorsement through use of the “Like” button). Further distribution may take place through the “Share” function. This is intended only as a generic description; no detailed evidence was presented as to the specific features in operation on Facebook at the time of this incident. Nevertheless, it appears from the evidence that these basic features all played a role in the dissemination of Ms. Van Nes’ defamatory remarks.

[83] 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 2,000 “friends”. The defendant must be taken to have implicitly authorized the republication of her posts. There is evidence from which widespread dissemination of the defamation through republication may be inferred. There is actual evidence of the republication at least to Ms. Regnier, who learned of the posts through the comments posted by several of her own “friends”. There is the indirect evidence through the comments made by neighbours who subsequently encountered Ms. Pritchard and remarked on the posts. And there is the possibility, at least, of republication having been made on Facebook by Mr. Parks; he stated in one of his comments that he had shared her post on his own Facebook page. Whether he did in fact do so has not been proven. If he did, such was implicitly authorized by Ms. Van Nes.

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[84] All of this republication through Facebook was the natural and probable result of the defendant having posted her defamatory remarks. Ms. Van Nes is liable for all of the republication through Facebook.

[85] This brings us to the question of the defendant’s liability for other forms of republication, specifically through email. Mr. Parks, after posting to Ms. Van Nes’ timeline his encouragement to spread the news, stating “why don’t we let the world know”, then republished by sending to Mr. Horton the email message attaching Ms. Van Nes’ photo of the mirror. Mr. Parks made editorial comments in that email, stating that the plaintiff was spying and referring to him as someone who would be understood by the public to be a potential paedophile; his editorialization merely summarized and made explicit the innuendo Ms. Van Nes had engaged in.

[86] I make no finding as to whether Mr. Parks was justified in reporting the activity on Ms. Van Nes’ Facebook page to Mr. Pritchard’s school principal. That issue, of course, is not before me. The essential point, with respect to the liability of the defendant, is that through the email Mr. Parks was republishing the defendant’s own attacks on Mr. Pritchard’s character.

[87] In my view, 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. Ms. Van Nes ought to have known that her defamatory statements would spread, not only through Facebook. She is liable for republication through the email on that basis.

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[134] Aggravated damages are not in order, but given the seriousness of the allegations and the extent of the harm suffered, a significant award of general damages is. I award the plaintiff general damages for defamation of $50,000.

[135] 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. She acted without any consideration for the devastating nature of her remarks. With regard to the factors enunciated by the Supreme Court of Canada in Whiten v. Pilot Insurance Co., 2002 SCC 18, at para. 13, 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 publically 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.

[136] I award the plaintiff additional punitive damages of $15,000.