Defamation / Reputation, Intermediary Liability
Google Inc. v. Duffy
Closed Contracts Expression
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In April 2016, the Supreme Court of British Columbia, Canada, found a Facebook user liable in defamation for posts she made on the site, republication of those posts through Facebook’s sharing structure, and posts made by her “friends” in reaction to her own posts. The Facebook user, Ms. Van Nes, had made posts on Facebook that referred to Mr. Pritchard, a local schoolteacher, as a “creep” and implied that he was a pedophile. These posts subsequently “went viral”, with many of Ms. Van Nes’ “friends” responding to the posts with more explicitly defamatory remarks. In finding Ms. Van Nes liable for the third-party defamatory material of her “friends”, the Court reasoned that Ms. Van Nes knew that those comments were made, or at least ought to have anticipated that they would be made, and failed to immediately take action to delete those comments. Therefore, she had to share responsibility for the comments.
Since 2008, the plaintiff, Mr. Pritchard, and the defendant, Ms. Van Nes, were neighbors. Mr. Pritchard worked as a music schoolteacher at a local middle school, and had been much admired by students, parents and colleagues. In 2011, tensions arose between the two parties’ families following allegations that Ms. Van Nes was using her property in such a way that constituted a nuisance. One allegation of nuisance flowed from the construction of a large fishpond on the rear side of Ms. Van Nes’ property. Mr. Pritchard and his wife complained that the constant noise emanating from the pond’s two waterfalls, that were running day and night, had disrupted their sleep on numerous occasions. They also claimed that Ms. Van Nes’ dog would often wander into their yard and defecate, and that the Van Nes’ family would have late night parties and would sometimes block the Pritchards’ driveway.
In June 2014, the ever-deteriorating relationship between the two families prompted Ms. Van Nes to make a number of posts on Facebook, the first of which (the original post) falsely claimed that Mr. Pritchard was using a system of cameras and mirrors to keep her backyard and her children under 24-hour surveillance. She also falsely claimed in the original post that Mr. Pritchard asked the municipality to require the Van Nes’ family to position their play center closer to his property. Ms. Van Nes stated that his behavior was a “red flag because [Mr. Pritchard] works for the Abbotsford school district”. Although the Pritchards had, for the purpose of pursuing the nuisance complaint, taken steps to document the waterfall and the Van Nes’ dog, there had never been any system of video surveillance or monitoring of Ms. Van Nes’ property. Ms. Van Nes’ original post was made at a time when her privacy setting was set to “Public,” allowing all Facebook users to access and read those remarks.
Over the next 21 hours, Ms. Van Nes’ original post prompted 57 further posts – 48 made by 36 different “friends” of Ms. Van Nes, and 9 by Ms. Van Nes herself. These comments used the terms “pedo,” “creeper,” “nutter,’ “freak,’ “scumbag,” “peeper,” and “douchebag” to refer to Mr. Pritchard. These posts had “gone viral”, resulting in a “terrible psychological impact” on Mr. Pritchard. [par. 36] One of Ms. Van Nes’ “friends” went so far as to send an email to the principal of Mr. Pritchard’s school disclosing Ms. Van Nes’ original post, and repeating many of its allegations and innuendos .
Mr. Pritchard subsequently brought a civil action for nuisance and defamation against Ms. Van Nes. Mr. Pritchard claimed that Ms. Van Nes was liable in defamation for (i) her remarks on social media, (ii) the republication of her remarks through Facebook (and through an email to Mr. Prichard’s place of employment), and (iii) the remarks of her “friends” in reaction to her posts. In July 2014, Mr. Pritchard obtained a default judgment against Ms. Van Nes’ after she failed to raise a defence. Subsequently, Mr. Pritchard sought orders for a permanent injunction, assessment of damages, and special costs from the Supreme Court of British of Columbia.
The Supreme Court of British Columbia (Court) upheld a number of Mr. Pritchard’s claims regarding nuisance, then proceeded to consider the defamation claim. Under Canada’s common law, a plaintiff in a defamation action must show that (i) the impugned words tend to lower the plaintiff’s reputation in the eyes of a reasonable person, (ii) the words in fact referred to the plaintiff, and (iii) the words were “published”, meaning that “they were communicated to at least one person other than the plaintiff.” [para. 64] Once these elements are proven, falsity and damage are presumed.
The Court unequivocally found Ms. Van Nes liable for her original Facebook post about Mr. Pritchard, as well as her own subsequent posts. The Court found the posts to be defamatory in both their natural and ordinary meaning, and by their innuendo. The Court explained that the ordinary and natural meaning of Ms. Van Nes’ comments were that Mr. Pritchard was a “nutter,” a “creep,” and an abnormal person. It further concluded that her original post contained the innuendo meaning that Mr. Pritchard was a pedophile. This innuendo meaning was supported by the false accusation that he was obsessed with videotaping her children, and that this was a “red flag” because he worked in the school district. This innuendo was further supported by Ms. Van Nes’ comments in response to her “friends” posts, and the fact that the “friends” clearly understood Ms. Van Nes’ meaning.
The Court then went on to consider whether Ms. Van Nes was liable for all of the republications of her defamatory statements within Facebook, and the email of one of her “friends” to the principal of Mr. Pritchard’s school. Under the law of defamation in Canada, a person is responsible only for his or her own defamatory publications, and not for their repetition by others. However, there are exceptions to this rule; including where the person “intend[s] or authorize[s] another to publish a defamatory communication on his or her behalf”, or where “repetition was the natural and probable result of his or her publication.” [para. 78] The Court took judicial notice of Facebook’s sharing structure and held that “anyone posting remarks to a page must appreciate that some degree of dissemination at least, and possibly widespread dissemination, may follow.” [para. 83] The Court also took into account that Ms. Van Nes’ privacy settings for her posts were set at “public,” which made her posts viewable to all Facebook users. In light of this, the Court determined that Ms. Van Nes “implicitly authorized” the republication of her posts. [par. 83] The Court also held that republication was “the natural and probable result of the defendant having posted her defamatory remarks.” [para. 84] Therefore, she was liable for all the republication through Facebook. Ms. Van Nes was also found to have implicitly authorized the email sent by her “friend” to Mr. Pritchard’s school because she ought to have known that her defamatory statements would be spread beyond Facebook.
Finally, the Court considered whether Ms. Van Nes was liable for the third-party defamatory statements made by her “friends” in reaction to her own posts. These posts were found to have contained more explicit denunciations of Mr. Pritchard. The Court first set out the test under the Canadian courts’ previous case law for establishing liability for third-party defamatory material. Under this test, an individual will be found to have adopted third-party defamatory material as their own where there is “(1) actual knowledge of the defamatory material posted by the third party, (2) a deliberate act that can include inaction in the face of actual knowledge, and (3) power and control over the defamatory content.” (Carter v. B.C. Federation of Foster Parents Association; Crookes v. Newton; Niemala v. Malamas)
Based on the circumstance of the present case, the Court concluded that Ms. Van Nes was responsible for the defamatory comments of her “friends” on Facebook. The Court inferred her actual knowledge from her numerous replies to the comments of her “friends” on her page. These replies demonstrated that she “had her Facebook page under, if not continuous, then at least constant viewing.” [par. 109] The Court also found that Ms. Van Nes had control of her Facebook page, and “failed to act by way of deleting those comments, or deleting the posts as a whole, within a reasonable time”. [par. 109] The Court proceeded to clarify that, given the gravity of the remarks and the ease at which Ms. Van Nes could delete the posts, “reasonable time” would equate to “immediately”.
The Court went on to state that, in cases such as the present one, it should not be a precondition of liability for a person to have “actual knowledge” of the existence of defamatory comments made by Facebook “friends”. This was because Ms. Van Nes had a reasonable expectation that her “friends” would make the posts that they did due to (i) the nature and structure of a social media platform, and (ii) the content of her original post. The Court reasoned that this case was distinguishable from its previous decisions on liability for third-party content in Carter v. B.C. Federation of Foster Parents Association, Niemala v. Malamas, and Crookes v. Newton, as those cases concerned defendants who were found not liable because they passively provided an online platform or links to the defamatory material. In this case, Ms. Van Nes was “far from being the passive provider of an instrument for comment, [she] continued as an active participant through making replies, prompting further comment. Those replies added fuel to the fire, compounding the chances of yet more defamatory comments being made.” [para. 112] Consequently, Ms. Van Nes would share the responsibility for defamatory comments posted by third parties following her original post regardless of whether or when she actually became aware of them. Acknowledging the potential implications of such a finding for freedom of expression, the Court limited the imposition of this liability “to situations where the user’s original posts are inflammatory, explicitly or implicitly inviting defamatory comments by others, or where the user thereafter becomes an active participant in the subsequent comments and replies.” [par. 117]
The Court concluded that Ms. Van Nes was liable for her own defamatory remarks, the republication of those remarks within Facebook and by email, and the defamatory comments of her Facebook “friends”. Accordingly, the Court awarded Mr. Pritchard general damages for defamation in the amount of $50,000, and an additional award of $15,000 in punitive damages against Ms. Van Nes.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision contracts expression by lowering the threshold for liability that had previously been set by the Canadian courts in cases concerning third-party content online. The decision distinguishes users hosting a page of a social medium platform who make inflammatory posts, invite defamatory comments from others, or who become an active participant in defamatory remarks or replies, from those online platform providers that are more “passive” in nature. The Court concluded that “actual knowledge” was a precondition for liability for the latter category, whilst the former could be liable for content they “ought to have known” would be made by third-parties.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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