03/02/2020 [90] 2016 BCSC 686 Pritchard v. Van Nes I find, in the circumstances, that the defendant had constructive knowledge of Mr. Parks’ comments, soon after they were made. Her silence, in the face of Mr. Parks’ statement, “why don’t we let the world know”, therefore effectively served as authorization for any and all republication by him, not limited to republication through Facebook. Any person in the position of Mr. Parks would have reasonably assumed such authorization to have been given. I find that the defendant’s failure to take positive steps to warn Mr. Parks not to take measures on his own, following his admonition to “let the world know”, leads to her being deemed to have been a publisher of Mr. Parks’ email to Mr. Pritchard’s principal, Mr. Horton. Defendant’s Liability for Defamatory Third-Party Facebook Comments [91] Liability for third-party defamatory comments on one’s personal account, whether on Facebook or another internet-based platform, is still an emerging legal issue in Canadian law. Nevertheless, the law has evolved to the point where consistent principles may be identified. [92] Crookes v. Newton, 2011 SCC 47, provides guidance as to what may constitute publication. The reasons of Deschamps J. (concurring in the result) are of particular assistance as to the issue of liability for third-party comments in that her analysis went further than that of the majority on this issue; the latter was centrally concerned only with liability of a webpage creator for hyperlinks to other internet pages containing defamatory material. At para. 55, Justice Deschamps reviewed the traditional test for publication: [P]ublication has two components: (1) an act that makes the defamatory information available to a third party in a comprehensible form, and (2) the receipt of the information by a third party in such a way that it is understood. [93] At para. 56, she held that given new technological developments in communication, the first component of publication needs to be reconsidered. She concluded (as did all the judges of the Court) that only deliberate acts can lead to liability. [94] At para. 59 she stated: [59] A more nuanced approach to revising the publication rule, and one that can be applied effectively to new media, would be for the Court to hold that in Canadian law, a reference to defamatory content can satisfy the requirements of the first component of publication if it makes the defamatory information readily available to a third party in a comprehensible form. In addition, the Court should make it clear that not every act, but only deliberate acts, can lead to liability for defamation. [Emphasis in original.] [95] Justice Deschamps concurred in the result of the majority judgment, but stated: While I agree that improvements can be made, I do not share the view of my colleague Abella J. that the solution is to exclude references, including hyperlinks, from the scope of the publication rule. In my view, the proper approach is (1) to explicitly recognize the requirement of a deliberate act as part of the Canadian common law publication rule, and (2) to continue developing the rule incrementally in order to circumscribe the manner in which a deliberate act must make defamatory information available if it is to result in a finding of publication. [96] Justice Deschamps reviewed the international caselaw at paras. 85 - 90, finding that it can be distilled down to the following rule: https://www.bccourts.ca/jdb-txt/sc/16/06/2016BCSC0686.htm 17/26