03/02/2020 2016 BCSC 686 Pritchard v. Van Nes [111] A user of a Facebook page is not in the same position as the defendant Newton in Crookes, the defendant Federation in Carter, or the respondent Google Inc. in Niemala. Those parties were only passively providing a platform or links to defamatory material. In the present case the entity in the analogous position would be Facebook, Inc., the owner of the software that creates the pages and the servers on which the content is stored. The user hosting a page of a social medium such as Facebook, on the other hand, is providing a forum for engagement with a circle of individuals who may share some degree of mutual familiarity. As noted above, the social nature of the medium is such that posts about concerns personal to the user may reasonably be expected to be discussed by “friends”. [112] What these factors entail is that once she initiated events through having made an inflammatory post concerning a matter of personal concern, Ms. Van Nes ought reasonably to have expected her “friends” to make sympathetic replies. The “friends”’ comments were not unprovoked reactions; they were part of a conversation. And then, when they did comment, Ms. Van Nes – far from being the passive provider of an instrument for comment – continued as an active participant through making replies, prompting further comment. Those replies added fuel to the fire, compounding the chances of yet more defamatory comments being made. [113] In other words, I would find that the nature of the medium, and the content of Ms. Van Nes’ initial posts, created a reasonable expectation of further defamatory statements being made. Even if it were the case that all she had meant to do was “vent”, I would find that she had a positive obligation to actively monitor and control posted comments. Her failure to do so allowed what may have only started off as thoughtless “venting” to snowball, and to become perceived as a call to action – offers of participation in confrontations and interventions, and recommendations of active steps being taken to shame the plaintiff publically – with devastating consequences. This fact pattern, in my view, is distinguishable from situations involving purely passive providers. The defendant ought to share in responsibility for the defamatory comments posted by third parties, from the time those comments were made, regardless of whether or when she actually became aware of them. [114] I note that the liability of Facebook users for defamatory comments made by others purely on the basis that they ought to know of the potential for such comments being made was considered and rejected by the New Zealand Court of Appeal, in Wishart v. Murray, 2013 NZHC 540, rev’d in part 2014 NZCA 461. This was an appeal from an interlocutory order on an application to strike allegations in the respondent plaintiff’s statement of claim. The appellant defendants had published allegedly defamatory statements on a Twitter account and on a Facebook page concerning a book written by the respondent plaintiff, and had repeated the statements during a radio interview. The defendants had partially succeeded on an interlocutory application to strike the pleadings, but much of the statement of claim remained intact and the defendants brought on an appeal of the application judge’s refusal to strike those other portions of the claim. [115] One of the claims against the defendants was in respect of their liability for third-party comments posted to the Facebook page. The application judge held this allegation to have been properly brought. He stated: https://www.bccourts.ca/jdb-txt/sc/16/06/2016BCSC0686.htm 21/26