Facebook and Defamation: Potential Liability for Any Post and Any Friend’s Comments

It likely comes as no news to most readers reading that social media is simultaneously a minefield or a gold mine for any litigation matter. As people increasingly share every facet of their lives through social media, they often unwittingly produce a nearly limitless source for potential evidence and liability.

Recently, in Pritchard v. Van Nes, 2016 BCSC 686 (CanLII) the British Columbia Supreme Court issued a sobering judgment reminding everyone of the real world consequences our digital lives can have.

The Plaintiff, Mr. Pritchard, had an acrimonious relationship with his neighbour, Ms. Van Nes. Their neighbourly quarrels were relatively ordinary as was, seemingly, Ms. Van Nes’ decision to take to social media to “vent” her frustrations (her words). What is less ordinary, is how Ms. Van Nes chose to vent.

After Mr. Pritchard had installed a decorative mirror at his property and took photographs and videos of Ms. Van Nes’ dog and water feature (which he was complaining of), Ms. Van Nes fired up her Facebook and published two photographs of Mr. Pritchard’s backyard with the following words superimposed over the pictures: “My neighbour has mirrors hanging outside his home…Doug also videotapes my kids in the backyard 24/7! Well Doug … Meet my mirror!”

It is important to note that the Court was very clear that Mr. Pritchard was not videotaping Ms. Van Nes’ children, did not install the mirror to spy on Ms. Van Nes and had installed no video surveillance equipment. The Court found that the allegations against him by Ms. Van Nes were completely false and unjustified.

Along with the photographs, Ms. Van Nes’ Facebook post included allegations that Mr. Pritchard was videotaping Ms. Van Nes’ 4 young daughters, that Mr. Pritchard’s behaviour was not normal adult behaviour and that he was stalking and/or obsessed with Ms. Van Nes’ children and suggested that Mr. Pritchard’s behaviour was a red flag for the school district he worked for.

Ms. Van Nes’ post was up for 27.5 hours and prompted 57 comments (9 of which were Ms. Van Nes’ responding). The comments by Ms. Van Nes and her friends included further allegations and insinuations of paedophilia and other misfeasance and variously referred Mr. Pritchard as a “pedo, “creeper, “nutter”, “freak”, “scumbag”, “peeper” and “douchebag”.

Importantly, one of Ms. Van Nes’ friends shared the post and indicated that he would share his concerns with Mr. Pritchard’s supervisor. The friend then went on to share the post with the school principal along with a letter indicating that Mr. Pritchard was a “potential paedophile” and suggesting that “kids may be in danger” (which the Court found was logically connected to the insinuations made and encouraged by Ms. Van Nes).

Despite the post only being up for a limited time, Mr. Pritchard testified to it having a deleterious effect on his career and enjoyment of life. He withdrew from his participation in school extra-curricular activities, grew anxious in interacting with students, felt reluctant to continue with his career and stated that he had encountered a number of situations where parents expressed distrust in him or withdrew their children from his programs.

The Court had little sympathy for Ms. Van Nes suggesting that she was only expressing her own frustrations and took particular note of that the nature of social media is to proliferate a poster’s comments and content. Ms. Van Nes’ Facebook page was open to the public and capable of virtually unlimited access as a result.

The Court found that Ms. Van Nes was liable for defamation on three bases.

First, Ms. Van Nes was liable for the publication of the original Facebook post on the basis that her “…remarks, by their ordinary and natural meaning taken together, and by innuendo, were defamatory in meaning that Mr. Pritchard was a paedophile and was unfit to teach.” (para. 74). Her further comments only reconfirmed these insinuations.

Second, Ms. Van Nes was liable for the repetitions and republications of her defamatory remarks. The Court took judicial notice of the fact that Facebook is a platform designed for users to redistribute posts from their friends. Ms. Van Nes had reasonable notice from her friend’s comments that he would reproduce her post and further notice from the notification of the sharing of her post. She did nothing to prevent the redistribution.

Thirdly, Ms. Van Nes was liable for the defamatory comments of her friends. The Court found these comments to be defamatory and noted that such were reproductions and offshoots of the comments made by Ms. Van Nes and were further encouraged and reaffirmed by Ms. Van Nes. Mr. Van Nes did not seek to correct or dissuade the defamatory statement of her friends, but implicitly and explicitly reaffirmed them. Ms. Van Nes knew her defamatory statements were being spread and built upon and did nothing to stop it.

In the result, the Court awarded $50,000.00 for the defamation and $15,000.00 for punitive damages.

Many questions arise out of the case such as whether the same liability might be found with a “private” Facebook account, if Facebook’s present platform does a better job at removing deleted comment from others’ “walls” or the effect where the original poster discourages further commenters’ defamatory conduct; however, the message is clear: assume that if you post anything on social media which is defamatory, you may be liable for same. Your exposure to liability only increases as your friends share or comment on your posts.

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