03/02/2020 2016 BCSC 686 Pritchard v. Van Nes which Google was not found as a publisher of “snippets” because it had not “authorised or caused the snippet to appear on the user’s screen in any meaningful sense” (para. 51). The search results listed automatically, without “knowing involvement in the process of publication of the relevant words” (para. 49). In other words, Google had only a passive instrumental role, without any knowing mental element being engaged. [107] Before endorsing this “passive instrument test” for publication, Fenlon J., as she then was, noted that while the majority judgment of Abella J. in Crookes had stopped short of expressly adopting the test, it did approve of the approach taken in Metropolitan, which had applied it. Justice Fenlon then reviewed Weaver, where Burke J. discussed the passive instrumental role that the National Post was found to have had in that case. Ultimately, she concluded that Google was a passive instrument and not a publisher of the snippets. Justice Fenlon clarified that she was not asked in that case to consider whether Google could be a publisher of snippets and search results after notice of the defamatory content had been received. [108] In summary then, from the forgoing law it is apparent that Carter, Weaver, and Niemela, consistent with Deschamps J.’s reasons in Crookes, provide support for there being a test for establishing liability for third party defamatory material with three elements: 1) actual knowledge of the defamatory material posted by the third party, 2) a deliberate act that can include inaction in the face of actual knowledge, and 3) power and control over the defamatory content. After meeting these elements, it may be said that a defendant has adopted the third party defamatory material as their own. [109] In the circumstances of the present case, the foregoing analysis leads to the conclusion that Ms. Van Nes was responsible for the defamatory comments of her “friends”. When the posts were printed off, on the afternoon of June 10th, her various replies were indicated as having been made 21 hours, 16 hours, 15 hours, 4 hours, and 3 hours previously. As I stated above, it is apparent, given the nine reply posts she made to her “friends”’ comments over that time period, that Ms. Van Nes had her Facebook page under, if not continuous, then at least constant viewing. I did not have evidence on the ability of a Facebook user to delete individual posts made on a user’s page; if the version of Facebook then in use did not provide users with that ability, then Ms. Van Nes had an obligation to delete her initial posts, and the comments, in their entirety, as soon as those “friends” began posting defamatory comments of their own. I find as a matter of fact that Ms. Van Nes acquired knowledge of the defamatory comments of her “friends”, if not as they were being made, then at least very shortly thereafter. She had control of her Facebook page. She failed to act by way of deleting those comments, or deleting the posts as a whole, within a reasonable time – a “reasonable time”, given the gravity of the defamatory remarks and the ease with which deletion could be accomplished, being immediately. She is liable to the plaintiff on that basis. [110] Furthermore, I would find that in the circumstances of this case there ought not to be a legal requirement for a defendant in the position of Ms. Van Nes having actual knowledge of the existence of defamatory comments by her “friends” as a precondition to liability. The circumstances were such that she ought to have anticipated such posts would be made. I come to this conclusion for two reasons: the nature or structure of a social medium platform, and the content of Ms. Van Nes’ contribution to the posts. https://www.bccourts.ca/jdb-txt/sc/16/06/2016BCSC0686.htm 20/26