Defamation is a communication about a person that unjustifiably damages the person’s reputation. It causes the reader or listener to think less of the person.
Defamation on social media attracts liability just as it would in traditional print and media. In fact, due to the viral nature of many social media platforms, such defamatory comments may cause significant reputational damage to the victim. The Court finds in Pritchard v. Van Nes that liability for such reputational damage can and will be borne by the negligent writer.[1]
FACTS
The plaintiff, Mr. Pritchard a school teacher, and the defendant, Ms. Van Nes, were neighbours who clashed on many occasions. The plaintiff requested the defendant to turn off her backyard waterfall in the evening as the sound was disturbing his wife’s sleep. The defendant refused his request. The relationship continued to deteriorate; from a defecating dog to municipal complaints and parking intrusions. To document the madness, the plaintiff took photographs and videos using his smart-phone. This sent Ms. Van Nes into a rage and she took to her Facebook page to vent. She wrote:
“Now that we have friends living with us with their 4 kids including young daughters we think it’s borderline obsessive and not normal adult behaviour… Not to mention a red flag because Doug (Pritchard) works for the Abbotsford school district on top of it all!!!!”
The defendant’s friends began to chime in in support of Ms. Van Nes, and the defamatory comments against Mr. Pritchard began to sprout. The insinuation that the plaintiff’s videotapes were inappropriate due to the presence of young girls is made explicit by the commenters: they accuse Mr. Pritchard of paedophilia and urge Ms. Van Nes to make criminal complaints.
One Facebook friend of the defendant took it upon himself to repost the comments on his own Facebook page and encouraged others to similarly spread the word. He even went so far as to write a letter to the principal of the school where Mr. Pritchard taught music echoing the accusation of paedophilia urging the school to immediately dismiss Mr. Pritchard.
The school dismissed the allegations as false and Ms. Van Nes deleted the offending content from her Facebook page the following day. However, the damage to the plaintiff’s reputation was done. As a teacher, the accusation of paedophilia is especially damaging to his confidence and led only to negative gossip and social disaster amongst neighbours and parents of students at his school.
THE DECISION
The Court found Ms. Van Nes liable for her defamatory comments pointing out that her comments were potentially viewed by all her 2,059 Facebook friends, as well as the friends of those friends. Ms. Van Nes’ privacy settings on Facebook allowed her defamatory post to be potentially viewed by the entire Facebook universe as her profile wall was completely public.[2]
What is interesting about the Court’s decision is that the judge found Ms. Van Nes vicariously liable for the defamatory actions of her ‘supportive’ friends as well. Traditionally, one is not responsible for the republication of one’s defamatory statements by others, unless such republication is foreseeable. Taking into account Facebook’s architecture and facilitation of forwarding and sharing of comments, the Court found that it was highly foreseeable that Ms. Van Nes’ original post would be replicated and had the potential to go viral.
Justice Saunders summarizes Facebook’s distinct network effect commenting that:
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.
The Court found two branches of liability:
- Van Nes was found liable for her supportive friend’s republication of her original post, and his ‘helpful’ complaint to Mr. Pritchard’s employer. The vigilante friend indicated that he would “tell the world”, and Ms. Van Nes negligently failed to take any steps to prevent his damaging republication of her original comments.
- Van Nes was also found liable for her friend’s defamatory comments on her Facebook wall. Ms. Van Nes knew, or ought to have known, that her Facebook wall contained defamatory statements posted by her friends and she failed to prevent their publication, or remove them in a timely manner. In fact, she encouraged the defamatory behaviour by commenting and replying to the series of comments made by her friends which one may interpret as an endorsement of such commentary.
The Court concludes that a Facebook or similar social media user (Twitter, Instagram, blogspot, etc.) is liable for the defamatory comments of others where:
- The original post or comment is inflammatory and invites defamatory comments by other users, or
- Where the original commenter actively participates in the ongoing defamatory dialogue.
DAMAGES
The Court awarded the plaintiff $50,000 in general damages and a further $15,000 in punitive damages finding that a false allegation of paedophilia is particularly damaging to a school teacher.
OUTLOOK
This case will apply to multiple social media channels and its lessons are of wide application. Wise people will take into account its lessons and ensure their conduct on social media is cognizant of the two branches of liability enunciated in this decision.
The Pritchard decision takes into account the new reality of social media noting the viral nature of the internet and its devastating effects and applies well established defamation principles in this new context.
Users of Facebook, Twitter, Instagram and other social media platforms beware: although free speech is a protected right, defamation is out of bounds, and one’s social media account is not a liability free zone.
[1] The Court’s full decision is available here.
[2] While the Court reduces this issue to a simple matter of changing privacy settings on Facebook, it’s important to note that Facebook is also redefining what public means on an ongoing basis. The most consistent efforts Facebook has put into its Terms of Service changes over the past several years have been about cementing its ability to unilaterally change what is private and what is public while eliminating methods of recourse for users, such as prohibiting class action suits. For an interesting infographic showing what is by default public from Facebook’s inception to present day please click here.
Daniel Nashid
Barrister & Solicitor
416.892.2509
[email protected]