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The Rise of Defamation in the Era of Social Media

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Brian Vickers

The rise in the number of defamation cases is not surprising when one considers the damning effects words can have on a person’s life.

In today’s era of social media, the ease, affordability, and anonymity by which someone can access the Internet is cause for concern. Particularly as it relates to the volatile sharing capacity of ubiquitous social media outlets, such as Facebook and Twitter, which have led to a corresponding increase in defamation cases. While one may perceive social media sites as a safe forum to discuss pressing concerns with friends, most people are blissfully unaware that an errant or offhanded post may have devastating ramifications on an innocent third party. People are also generally blind to the lengths the court has gone to denounce such conduct in hopes of sending a chilling message to deter such conduct in the future.

The rise in the number of defamation cases is not surprising when one considers the damning effects words can have on a person’s life. This effect was aptly summarized by the Supreme Court of Canada in the leading case of Hill v. Church of Scientology of Toronto, [1995] S.C.R. 1130 where Justice Cory stated as follows:

A defamatory statement can seep into the crevasses of the subconscious and lurk there ever ready to spring forth and spread its cancerous evil. The unfortunate impression left by a libel may last a lifetime. Seldom does the defamed person have the opportunity of replying and correcting the record in a manner that will truly remedy the situation.

The unfortunate reality is that any individual with a quarter or a library card can assume an alias, access the Internet, and commence a defamatory campaign against an innocent person. Accordingly, when you combine this “cancerous evil” with a universal social media platform like Facebook, which hosts more than one billion daily users, the effects can be catastrophic. The court is intimately aware of this concern and, as observed by the following quote of Justice Saunders in Pritchard v. Van Nes, 2016 BCSC 686 (“Pritchard”), are responding appropriately to denounce such conduct on social media: 

In my view, 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.

In recognition of the court’s increasing duty to respond to this discouraging reality, Justice Saunders in Pritchard expanded the traditional parameters of defamation by finding people liable for not only their own defamatory posts, but also for the comments made by others on your social media thread provided the following elements were established:

You have actual knowledge of the defamatory material posted by the third party;

There is a deliberate act not to remove the material, which can include inaction in the face of actual knowledge; and

You have power and control over the defamatory content.

In a nutshell, in most conceivable situations, you will have control over your own social media page. As a result, if you incite comments from others and, after viewing them, fail to delete them within a reasonable time, you could be liable for those comments. 

While Facebook and other social media sites provide a forum to post your views to the world at large, your ability to use those forums comes with the responsibility to make sure that you do not defame innocent parties. Now, with decisions like Pritchard¸ it also means that you are responsible for making sure others don’t post defamatory comments on your pages. Overall, the clear message from the court is that “venting” on social media can have grave consequences and people should be cautious before making a denigrating or disparaging post about another person or entity.

You can read the original article here, on bartalk ww.cbabc.org

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