Liability for Comments Posted Online by Third Parties
By Jeff G. Saikaley
When are you liable for the defamatory comments of others? That was the question squarely before the Supreme Court of British Columbia in the Pritchard v. Van Nes, 2016 BCSC 686 (CanLII) decision. In the Pritchard case, the defendant made postings on her Facebook page about the plaintiff to her 2000 ‘friends’, which she then opened up to the public by changing her privacy settings to ‘Public’. Many people posted comments about the plaintiff and shared her posting with their own network of ‘friends’. The Court had no difficulty finding the defendant liable for her own postings, but the issue the Court grappled with was whether she should be held liable for the defamatory comments of others posted in response to her initial post.
The issue of liability for online comments of others is a developing area of the law of defamation. The trend toward liability began in Crookes v. Newton, 2011 SCC 47 (CanLII), a case in which the Supreme Court of Canada dealt with the liability of a webpage creator for hyperlinks to other internet pages containing defamatory material. In that case, Justice Deschamps concluded that only deliberate acts could lead to liability; so the mere hyperlink to a page containing defamatory comments, in and of itself, did not attract liability. Justice Deschamps concurred in the result of the majority judgment, but stated:
The plaintiff must show that the act is deliberate. This requires showing that the defendant played more than a passive instrumental role in making the information available. (para. 91).
However, the case left the door open for situations where the defendant did more than just link to another page. In fact, it left the door open to more broadly define ‘deliberate acts’ to include situations where the defendant is shown to have failed to act to remove defamatory material when s/he has actual knowledge or constructive knowledge of the defamatory material.
In Weaver v. Corcoran, 2015 BCSC 165 (CanLII), the issue before the Court was the liability of the newspaper for the publication of defamatory comments in the reply section of the online edition of the National Post. The plaintiff sued over various articles published by the newspaper, but also claimed that the media defendants were liable for numerous posts made by readers in response to the articles online. The media defendants argued that they played a passive role and took no deliberate action amounting to approval, adoption, promotion or ratification of the contents of the reader posts. They took down the posts within a day or two of receiving the plaintiff’s complaint and argued that it was unrealistic for them to screen the voluminous comments submitted by readers.
Justice Burke held that it would be unreasonable to expect the National Post to review every comment before it was posted and refused to find liability on that basis.
The trend in the caselaw was therefore toward a finding of liability for third party comments when the plaintiff could prove the following elements: 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.
In the Pritchard case, the Court found Ms. Van Nes responsible for the defamatory comments of her “friends”. The Court held:
When the posts were printed off, on the afternoon of June 10th, her various replies were indicated as having been made 21 hours, 16 hours, 15 hours, 4 hours, and 3 hours previously. As I stated above, it is apparent, given the nine reply posts she made to her “friends”’ comments over that time period, that Ms. Van Nes had her Facebook page under, if not continuous, then at least constant viewing. I did not have evidence on the ability of a Facebook user to delete individual posts made on a user’s page; if the version of Facebook then in use did not provide users with that ability, then Ms. Van Nes had an obligation to delete her initial posts, and the comments, in their entirety, as soon as those “friends” began posting defamatory comments of their own. I find as a matter of fact that Ms. Van Nes acquired knowledge of the defamatory comments of her “friends”, if not as they were being made, then at least very shortly thereafter. She had control of her Facebook page. She failed to act by way of deleting those comments, or deleting the posts as a whole, within a reasonable time – a “reasonable time”, given the gravity of the defamatory remarks and the ease with which deletion could be accomplished, being immediately. She is liable to the plaintiff on that basis. (par. 109)
The Court distinguished the Crookes case and found that Ms. Van Nes was not passively providing a platform or links to defamatory material; she was providing a “forum for engagement with a circle of individuals who may share some degree of mutual familiarity. As noted above, the social nature of the medium is such that posts about concerns personal to the user may reasonably be expected to be discussed by “friends”.” The Court found that Ms. Van Nes ought reasonably to have expected her “friends” to make sympathetic replies. When they replied, Ms. Van Nes was continued to be an active participant by replying to the comments and prompting further reactions which “added fuel to the fire, compounding the chances of yet more defamatory comments being made.”
It is interesting that the Court made a finding that a Facebook user (or any similar social media platform) has a positive obligation to actively monitor and control posted comments. This case will have precedential value and sends a strong message that social media users can no longer “vent” online without consequences. This type of public shaming is becoming more and more common, with devastating consequences. This precedent allows the plaintiff to seek recovery from the person that created the platform for others to attack his/her reputation without having to identify each one and sue them individually.
Justice Saunders concluded on this point by stating “the potential in the use of internet-based social media platforms for reputations to be ruined in an instant, through publication of defamatory statements to a virtually limitless audience, ought to lead to the common law responding, incrementally, in the direction of extending protection against harm in appropriate cases. This is such a case.”
If this precedent stands, everyone using social media platforms such as Facebook will need to take notice. If you use these platforms to “vent” or “rage” about others, you should not only be concerned about your own comments, but those of others that respond to your postings. If you are going to create a platform for others to join in on the conversation, you will have to closely monitor their comments and remove those that are defamatory as quickly as possible. Otherwise, you could be found liable for comments made by someone else and pay damages and legal fees to the plaintiff.