03/02/2020
2016 BCSC 686 Pritchard v. Van Nes
The plaintiff must show that the act is deliberate. This requires showing that the defendant
played more than a passive instrumental role in making the information available. (para. 91).
[97] Justice Deschamps referred to an oft-cited case, Byrne v. Deane, [1937] 1 K.B. 818 (C.A.),
where the defendant owners of a golf club were found liable for defamatory remarks that had left
posted on their property, over which they had complete control. Justice Deschamps stated that
Byrne and the cases following it ground the rule that publication be founded in a deliberate act:
[87] Byrne and its progeny are consistent with the requirement that any finding of publication
be grounded in a deliberate act. If a defendant was made aware (or had reason to be aware)
of defamatory information over which he or she had sufficient control but decided to do
nothing about it, this nonfeasance might amount to a deliberate act of approval, adoption,
promotion, or ratification of the defamatory information… . The inference is not automatic, but
will depend on an assessment of the totality of the circumstances…
[Emphasis added; citation omitted.]
[98] Given the jurisprudence cited by Deschamps J., it appears that a deliberate action can
encompass failure to act to remove the defamatory material once actual knowledge or constructive
knowledge has been made out.
[99] Before Crookes, the British Columbia Court of Appeal was one of the first in Canada to
address the issue of liability of online forum owners/operators for defamatory comments posted by
third parties on their website, in Carter v. B.C. Federation of Foster Parents Association, 2005
BCCA 398. The Federation operated an online forum in which a defamatory posting regarding the
plaintiff had been made. After discovering the posting, the plaintiff urged the board of directors of
the Federation to shut down the forum as it was being misused. Sometime later, the plaintiff
discovered that the defamatory posting had not been removed, although it was within the
Federation's power to do so.
[100] The plaintiff’s defamation action for the third party comment was dismissed on summary
judgment because it was held to be time-barred on account of the “single publication rule” found in
American authorities. The single publication rule states that the publication of defamatory matter
gives rise to only one cause of caution, which accrues at the time of the original publication, and
that the statute of limitations runs from that date. As it had been more than two years before the
plaintiff in Carter amended her statement of claim to include the online defamatory comment, it was
held that the limitation period had passed.
[101] The Court reversed the summary judgment with respect to the matter of the third party
defamatory comment on the forum over which the Federation had control, and remitted the matter
back to trial. In doing so, Hall J.A. remarked as follows:
If defamatory comments are available in cyberspace to harm the reputation of an individual, it
seems appropriate that the individual ought to have a remedy. In the instant case, the
offending comment remained available on the internet because the defendant respondent did
not take effective steps to have the offensive material removed in a timely way. (para. 20)
[Emphasis added.]
In determining that the Federation was a "publisher" of the defamatory information, the Court of
Appeal stated that the analysis upon retrial would need to address the facts that the Federation had
https://www.bccourts.ca/jdb-txt/sc/16/06/2016BCSC0686.htm
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