03/02/2020 2016 BCSC 686 Pritchard v. Van Nes [117] Those who host Facebook pages or similar are not passive instruments or mere conduits of content posted on their Facebook page. They will be regarded as publishers of postings made by anonymous users in two circumstances. The first is if they know of the defamatory statement and fail to remove it within a reasonable time in circumstances that give rise to an inference that they are taking responsibility for it. A request by the person affected is not necessary. The second is where they do not know of the defamatory posting but ought, in the circumstances, to know that postings are being made that are likely to be defamatory. [Emphasis added.] [116] The Court of Appeal, however, expressed reservations as to finding liability on the basis of what a Facebook user ought to know. Two of their concerns had to do with perceived conflicts between that test and New Zealand legislation, including in particular the need to balance, under the New Zealand Bill of Rights, the right of freedom of expression against the interests of persons in protecting their reputation. The other concerns expressed by the Court had to do with issues in the law of defamation: [137] The first concern is that, as Mr Rennie submitted, the ought to know test puts a Facebook page host who does not know of a defamatory comment on the page in a worse position than a host who actually does know. The latter will not be a publisher of the comment until a reasonable time for its removal has elapsed (and will not be a publisher at all if he or she removes it in that time). The former will be a publisher from the moment the comment is posted and unable to avoid that consequence by removing the comment from the Facebook page. [138] The situation will be more complicated when a Facebook page host who ought to know of a defamatory comment on the page actually becomes aware of the comment. On the actual knowledge test, he or she can avoid being a publisher by removing the comment in a reasonable time. But removal of the comment in a reasonable time after becoming aware of it will not avail him or her if, before becoming aware of the comment, he or she ought to have known about it, because on the ought to know test he or she is a publisher as soon as the comment is posted. This seems to us to make the test very difficult to apply. [139] The second concern is that the ought to know test makes the Facebook page host liable on a strict liability basis, solely on the basis of the existence of a defamatory comment. Once the comment exists, he or she cannot do anything to avoid being treated as its publisher. [140] It can be argued that the ought to know test is not entirely a strict liability one, because it applies only where the circumstances are such that the host should reasonably anticipate the posting of a defamatory statement. That is akin to making the host liable for the defamatory comment because he or she has been negligent in not taking steps to prevent the defamatory comment being made. Imposing liability for damage to someone’s reputation on the basis of negligence rather than an intentional act is contrary to the well-understood nature of the tort of defamation as an intentional tort. … [142] The fourth concern is that the ought to know test is uncertain in its application. Given the widespread use of Facebook, it is desirable that the law defines the boundaries with clarity and in a manner that Facebook page hosts can regulate their activities to avoid unanticipated risk. [Citations omitted.] [117] In my respectful view, the concerns expressed by the New Zealand Court of Appeal are addressed through limiting the imposition of liability to situations where the user’s original posts are inflammatory, explicitly or implicitly inviting defamatory comment by others, or where the user thereafter becomes an active participant in the subsequent comments and replies. Ms. Van Nes qualifies under either of those grounds. Their concerns with respect to blurring the lines between negligence and defamation are, with respect, unfounded; foreseeability is already well-recognized as a component of the tests for liability for republication. It does no harm to the integrity of https://www.bccourts.ca/jdb-txt/sc/16/06/2016BCSC0686.htm 22/26