Be careful what you – and your “friends” – say

Simon is the lawyer at CREA who usually creates doomsday titles to lure REALTORS® into reading his articles but today I’m taking a page from his book.

In today’s society people “friend” other people on Facebook all the time, often without any real-life connection to that person. Normally a person would never think they could be responsible for the actions of their Facebook ”friends,” especially when they don’t really know them, but a recent case in B.C. may have just changed that.

Pritchard v. Van Nes is a case where Ms. Van Nes makes clearly defamatory statements on her Facebook page. Her “friends” commented on that post and the post was subsequently republished on her “friends’” pages. It’s not a new concept that a person can be held liable for their own defamatory statements on social media. What is new, however, is that the court in this case found Ms. Van Nes liable for the republication of those posts by her “friends” and for defamatory comments made by her “friends” on the posts.

This is a landmark case because the general rule is that an original author of defamatory comments is not liable for republication of those comments if they have no control over the republication. In this case the court sets out exceptions to this rule, one being where republication is the natural and probable result of the original publication. With respect to Facebook, they establish that people who make posts know, or ought to know, that their posts will be further disseminated either through “likes,” “shares” or comments made on those posts. The republication of Facebook posts is therefore the natural and probable result of the original publication and therefore Ms. Van Nes was held liable for republication of her posts by her “friends.”

Not only was she held liable for the republication of her posts, she was also held liable for defamatory comments that her “friends” made in response to her posts. This again seems to be a big leap in the legal world since there is little case law on the matter. Nevertheless, the court found that Ms. Van Nes knew about her “friends’” comments and had the ability to delete them, but yet she chose not to.  Subsequently, she was ordered to pay damages of $65,000.

The question these legal blogs always beg is: “what does this mean for me?” Well, most REALTORS® I know are active on Facebook and social media in general to market their services and to make connections. The Van Nes case suggests that REALTORS® should actively review comments made on their posts and delete anything that could be questionable.

The article above is for information purposes and is not legal advice or a substitute for legal counsel.

Allison McLure, former Legal Counsel, provided advice to CREA, boards, and associations on intellectual property law, DDF®, and Canada’s anti-spam legislation, as well as protected CREA’s trademarks and helped members comply with federal legislation and CREA’s trademark rules.

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