Liability for third-party defamatory comments on one’s personal account, whether on Facebook or another internet-based platform, is an emerging legal issue in Canadian law.
If a social media “friend” posts defamatory statements about another person on your profile, or other site, can you be personally liable to the defamed person? Do you have any obligation to actively monitor your social media existence in the face of such statements? Are you liable for third party statements that you may not even be aware of?
These questions were considered in a recent decision by the Supreme Court of British Columbia, which provided guidance in relation to potential liability and duties that result from the usage of social media in Canada (Pritchard v. Van Nes, 2016 BCSC 686).
The case involved a plaintiff who was the target of comments on the defendant’s Facebook page. Third parties posted defamatory comments about the plaintiff, implying that he was a paedophile, among other things. The allegations had serious ramifications on the professional career of the plaintiff, who was a music teacher at a local school. In the court’s decision, Saunders J. noted that while there is a general rule that a person is responsible only for his or her own defamatory publications, and not for their repetition by others, there are several exceptions to the rule. As reproduced from the decision (and Professor’s Brown’s text in The Law of Defamation in Canada, 2nd ed. (Scarborough: Carswell, 1994), at 348-350 (emphasis added):
Republication occurs where the person to whom the words were originally published communicates them to someone else. The general rule is that a person is responsible only for his or her own defamatory publications, and not for their repetition by others. There is no liability for a republication by a third person that the defendant neither authorized nor intended to be made.
There is no liability upon the original publisher of the libel when the repetition is the voluntary act of a free agent, over whom the original publisher had no control and for whose acts he is not responsible …
However, there are several exceptions to this rule. The defendant may intend or authorize another to publish a defamatory communication on his or her behalf. Secondly, a defendant may publish it to someone who is under some moral, legal or social duty to repeat the information to another person. Thirdly, a defendant may be liable if the repetition was the natural and probable result of his or her publication. These rules apply only where the information repeated is the same or substantially the same so that the sum and substance of the original charge remains. Once the requirements have been satisfied, the plaintiff is entitled to recover damages from the defendant both for the original publication and for the republication by the person to whom it was initially published.
The specific context and environment of social media was considered in determining whether the present fact scenario lent itself to an exception from the general rule. Saunders J. took judicial notice regarding the nature and operation of social media platforms and applications. In particular, he noted the ubiquity of social media platforms, and how social media platforms facilitate distribution through their structure and architecture. In coming to his decision, Saunders J. reviewed social media specific factors, including:
- the defendant’s privacy settings (set as public),
- her number of friends (over 2,000),
- her initial posts,
- the timeframe of her replies (implying that she was actively viewing her page and did not delete the statements within a reasonable time – but she did delete some posts following a complaint to the police),
- the gravity of the defamatory remarks, and
- the ease with which deletion could be accomplished.
The comments proliferated across the internet, and the comments had “gone viral” (despite being eventually deleted from the defendant’s page).In concluding that the defendant was indeed liable for the statements, Saunders J. found that there was a reasonable expectation of further defamatory statements being made, and further, that she had a positive obligation to actively monitor and control posted comments. He distinguished the present facts from passive service providers, and noted that the defendant’s failure to monitor allowed what may have only started off as thoughtless “venting” to snowball, and to become perceived as a call to action – offers of participation in confrontations and interventions, and recommendations of active steps being taken to shame the plaintiff publically, with devastating consequences.
Saunders J. found “the defendant ought to share in responsibility for the defamatory comments posted by third parties, from the time those comments were made, regardless of whether or when she actually became aware of them” (emphasis added). The plaintiff was awarded $2,500 for nuisance, $50,000 for defamation, punitive damages of $15,000, and his costs. Notably, as discussed in one of our recent posts, a similar finding (positive obligation to monitor social media accounts) was also found in a recent South African decision, and it appears that this issue will become increasingly common in the age of social media. In contrast, the law in the United States differs, as can be seen in this 2015 post.
Social media influencers are changing the face of marketing, consumerism, and activism—with great power comes great responsibility.