03/02/2020 2016 BCSC 686 Pritchard v. Van Nes defamation as a separate tort to extend the use of foreseeability by making it a test for liability for third-party comments. [118] The need to balance rights referred to by the New Zealand Court of Appeal is of course a valid concern in Canada as well. In Niemala, Fenlon J. noted: … the tenor of Crookes and of recent jurisprudence in England is to narrow the test for who is a publisher of defamatory material to those who do deliberate acts. In Canada this shift originates in the Supreme Court of Canada’s recognition post-Charter “that what is at stake in an action for defamation is not only an individual’s interest in protecting his or her reputation, but also the public’s interest in protecting freedom of expression”: Crookes at para. 31, citing Hill v. Scientology. [119] However, at the same time the minority opinion of Deschamps J. in Crookes, at least, endorsed findings of liability in situations where the user “had reason to be aware” of defamation (Crookes, at para. 97). 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. This is such a case. Damages for Defamation [120] Defamation is a strict liability tort and damage is presumed: Best v. Weatherall, 2010 BCCA 202 at para. 45. Damages can be difficult to assess in defamation cases, but the court must strive to “achieve restitutio in integrum. Such an award should provide ‘solatium, vindication and compensation…’”: Best at para. 46. [121] The factors to be considered in assessing defamation awards are summarized in Leenen v. Canadian Broadcasting Corp. (2000), 48 OR (3d) 656, 50 CCLT (2d) 213, at para. 205; affirmed (2001), 54 O.R. (3d) 612; leave to appeal ref’d [2001] S.C.C.A. No. 432. [205] In attempting to arrive at the appropriate level of general damages in a defamation case, one must always be aware of not only the damage inflicted to a person's reputation but also the fact that once damaged a reputation is very difficult to restore. Always mindful of the fine balance between freedom of speech and the protection of reputation, once the scales have been tipped through defamation, a plaintiff is entitled to be compensated not only for the injury caused by the damage to his integrity within his broad community but also for the suffering occasioned by the defamation. A number of cases … established factors which might be considered in assessing the appropriate level of compensation. While not all inclusive, some of these factors are as follows: (a) the seriousness of the defamatory statement; (b) the identity of the accuser; (c) the breadth of the distribution of the publication of the libel; (d) republication of the libel; (e) the failure to give the audience both sides of the picture and not presenting a balanced review; (f) the desire to increase one's professional reputation or to increase ratings of a particular program; (g) the conduct of the defendant and defendant's counsel through to the end of trial; (h) the absence or refusal of any retraction or apology; (i) the failure to establish a plea of justification. https://www.bccourts.ca/jdb-txt/sc/16/06/2016BCSC0686.htm 23/26