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 18/26