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When “Sharing” Isn’t Caring: Social Media and Online Defamation

The widespread use and convenience of the internet offers many conveniences – food and shopping delivered right to your door, transportation can be arranged at the push of a button and followed on an online map, communication is instantaneous – but the last can get us into a myriad of troubles. What were once words shared between friends in person can now be words broadcasted to the entirety of a person’s social network. It can be difficult to remember that social media is, in fact, media, and that, without properly maintained social media policies and security settings, thoughts shared online can be shared with an unlimited audience.

The speed at which the internet and social media moves means that reputations built over a lifetime can be destroyed in an instant.

The courts have recognized for some time that “cyber liber” or “internet defamation” is of a different quality than libel or defamation over other mediums, especially with respect to the quantum of damages. [1] The Ontario Court of Appeal (“ONCA”) noted that “ Communication via the Internet is instantaneous, seamless, interactive, blunt, borderless, and far-reaching. It is also impersonal, and the anonymous nature of such communications may itself create a greater risk that the defamatory remarks are believed .”[2] The ONCA concluded that “ The mode and extent of publication is therefore a particularly significant consideration in assessing damages in Internet defamation cases .”[3]

How does this apply to the condominium context? A recent decision out of British Columbia, Pritchard v Van Nes, 2016 BCSC 686, regarding a simple disagreement between neighbours that escalated far beyond any measure commensurate with the initial complaint is instructive. While Pritchard did not occur in a condominium, it is easy to see how the events that gave rise to litigation could just as easily occur in a condominium community.

In Pritchard, the plaintiff, Mr. Pritchard, and his wife, lived next door to the defendant, Ms. Van Nes. The Van Nes’ installed a waterfall pond in their backyard that they kept running 24 hours a day. The sound from the waterfall pond disrupted the sleep of the Pritchards and they asked the Van Nes’ to turn the motor running the waterfall off during the evening, from the hours of 10pm to 7am. The defendant refused, and so Mr. Pritchard complained to the municipality; the defendant responded initially by turning off the waterfall during the evenings as requested, but she eventually turned the waterfall back on and began a campaign of petty unneighbourliness. The more the Pritchards complained to the Van Nes’, the municipality, and the local police, the more determined Ms. Van Nes was to make life unpleasant for the Pritchards. Ms. Van Nes sent her dog over to the Pritchards’ yard to defecate, she hosted loud parties late into the night (on one occasion a loud bang was heard in the early hours of the morning, which Ms. Van Nes boasted the following morning was a dynamite being set off), she instructed family members and guests to park in front of the fire hydrant in the Pritchards’ front yard, partially blocking their driveway.

The municipality asked the Pritchards to document their complaints against the Van Nes’ and so Mrs. Pritchard took a few photographs and some short videos of the waterfall and the dog defecating in their backyard. At no time was there a video surveillance system set up. Further, Mrs. Pritchard hung decorative mirrors in her backyard as a form of feng shui; the mirrors were not part of any surveillance system. However, this did not stop Ms. Van Nes from alleging that the Pritchards were surveilling her yard, and what ensued was nothing short of devastating for Mr. Pritchard.

Ms. Van Nes took a photo of the feng shui mirrors in the Pritchards’ backyard and superimposed the words “ My neighbour has mirrors hanging outside his home…Doug also videotapes my kids in the backyard 24/7! Well Doug … Meet my mirror !” over the photo and posted it to Facebook, with the following remarks (all spelling and punctuation as in the original):

“Some of you who know me well know I’ve had a neighbour videotaping me and my family in the backyard over the summers…. Under the guise of keeping record of our dog…

Now that we have friends living with us with their 4 kids including young daughters we think it’s borderline obsessive and not normal adult behaviour…

Not to mention a red flag because Doug works for Abbotsford school district on top of it all! ! ! !”

The mirrors are a minor thing… It was the videotaping as well as his request to the city of Abbotsford to force us to move our play centre out of the covenanted forest area and closer to his property line that really, really made me feel as though this man may have a more serious problem.

As the court noted, over the next 27 ½ hours, the initial posting garnered 57 comments; 48 made by 36 different Facebook friends of Ms. Van Nes, 9 by Ms. Van Nes herself. The court relayed a number of the comments and summarized that “Mr. Pritchard was expressly referred to as a “pedo”, “creeper”, “nutter”, “freak”, “scumbag”, “peeper” and a “douchebag”.” [4] Ms. Van Nes did not apply any privacy settings to her post – it was set to public, and she had over 2,000 Facebook friends who could have possibly seen her post in their newsfeed.

The defendant properly identified Mr. Pritchard as Doug, a middle-school music teacher in the community, and implied that he had some kind of prurient interest in the children who played in her backyard. One of Ms. Van Nes’ Facebook friends who commented on the post, Rick Parks, suggested that she send the picture to Mr. Pritchard’s principal and “use his position as a teacher against him.” Ultimately, Rick Parks took it upon himself to email the image to Mr. Pritchard’s principal, repeating Ms. Van Nes’ allegations against Mr. Pritchard to his principal.

One of Mr. Pritchard’s friends, a woman whose children had been taught by him when they were at the school, saw the post and went to the school to inform Mr. Pritchard of the allegations being made against him. She was not friends with Ms. Van Nes on Facebook; however, a mutual Facebook friend had commented on the posting, thereby making the posting visible in her newsfeed. She and Mr. Pritchard attended the principal’s office to inform him of what was happening. The principal had seen the email from Rick Parks at that time and had already phoned his superior. His superior asked the principal if he believed the allegations, and while the principal said that he did not, if they were substantiated, “Mr. Pritchard would have had his teaching license revoked.”[5]

Mr. Pritchard contacted his wife, who printed out the posting and commentary along with Ms. Van Nes’ Facebook friend list and then attended at the local police station to file a complaint. When the police came to the Pritchards’ residence later that evening to take the details of the complaint, Ms. Van Nes deleted the photo and comments, but it was too late. The damage had been done.

Following the post, Mr. Pritchard significantly scaled back his involvement in extracurricular activities with the music program at the school, the Pritchards’ car was “keyed” in their driveway, and their doorbell was rung several times late at night. Further, Mr. Pritchard’s mental state deteriorated; he testified that he felt “ awkward, humiliated, and stressed when out in public, wondering who might know about the Facebook posts and whether they believe the lies that were told about him. [6]

The judge made the following observations about Ms. Van Nes’ behaviour following the deletion of the post:

Prior to trial, Ms. Van Nes made no apology to the plaintiff or his family. She deleted the offending posts from her Facebook page, but she has made no positive form of retraction or apology. She has done nothing to counter the effect of her posts having “gone viral”. She insinuated in her cross-examination of Ms. Pritchard that she and her husband were unable to apologize because the Pritchards had asked them not to come onto their property; she gave no explanation as to why a letter could not have been sent. [7]

The underlying unneighbourliness that gave rise to the internet defamation claim against Ms. Van Nes – the noisy waterfall and defecating dog – was found to be a nuisance and Mr. Pritchard was awarded $2,500 in damages, along with a permanent injunction preventing Ms. Van Nes from operating the waterfall from 10pm to 7am (note: this was Mr. Pritchard’s request in the first place, prior to any escalation).

The internet defamation, however, was an entirely different story. The court noted that there were three ‘modes’ in which the defamation occurred: 1) Ms. Van Nes’ remarks published on her own Facebook page; 2) the republication of her remarks through being shared on Facebook and via email; and 3) the defamatory remarks made by third parties in reaction to Ms. Van Nes’ remarks.[8]

At this point it would be helpful to enumerate the elements required to establish a claim of defamation. The Supreme Court of Canada (“SCC”) in Grant v Torstar Corp., 2009 SCC 61, summarised the elements as follows:

A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed


The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability. [9]

In Pritchard, the court had no problem finding that both the plain and ordinary meaning as well as the innuendo created by Ms. Van Nes’ words published to Facebook met the Grant v Torstar test and were defamatory.

With respect to republication, the court took judicial notice of some of the functions of Facebook:

1) “The distribution of information – comments, photographs, videos, links to items of interest – amongst users is fundamental to the use of a social media platform such as Facebook”;

2) “Facebook in particular facilitates such distribution through its structure or architecture. […] As “friends” react by commenting, the “friends”’ comments may be spread automatically to “friends of friends”. Such comments are solicited implicitly through the medium’s tools that allow “Comment” on a post and “Reply” to a comment (not to mention soliciting endorsement through use of the “Like button”). Further distribution may take place through the “Share” function.” [10]

The court held that “ anyone posting remarks to a page must appreciate that some degree of dissemination at least, and possibly widespread dissemination, may follow. This is particularly true in the case of the defendant, who had no privacy settings in place and who had more than 2,000 “friends” .”[11] With respect to the email that was sent by Rick Parks to Mr. Pritchard’s principal, the court found that “his editorialization merely summarized and made explicit the innuendo Ms. Van Nes had engaged in.” [12] Furthermore, given that 1) he commented on the original post saying “ why don’t we let the world know”, 2) the defendant commented on her own post nine times both before and after Mr. Parks’ comment, and 3) Ms. Van Nes’ own testimony at trial regarding the importance of Facebook in her own life, the court held that she had constructive knowledge of his comments soon after they were made. Her silence after his statement about letting the world know constituted “ authorization for any and all republication by him, not limited through Facebook. [13] The defendant was therefore deemed to be the publisher of these republished remarks and found liable for the republication, not only through Facebook, but also by Mr. Parks in his email to Mr. Pritchard’s principal.

Finally, the court considered whether Ms. Van Nes could be liable for the defamatory remarks made by her Facebook friends in the commentary to her original post. The court reviewed the case law, especially decisions dealing with large news and internet companies, such as the National Post[14] and Google [15], where they were sued for defamatory remarks made in the “comments” section of their articles and content. The SCC decision Crookes v Newton, 2011 SCC 47, was also considered, to ground the rule that while publication can only be founded in a deliberate act, “a deliberate action can encompass failure to act to remove the defamatory material once actual knowledge or constructive knowledge has been made out.” [16] The court held that these decisions created three elements necessary for establishing liability for third party defamatory material:

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. [17]

Given that Ms. Van Nes commented on her own defamatory post some 9 times in the 27 ½ hours it was posted publicly on her Facebook page, the court had no difficulty finding that she had her Facebook page under “if not continuous, then at least constant viewing.” She therefore acquired knowledge of the third party defamatory comments “if not as they were being made, then at least very shortly thereafter.” [18] By failing to act – by either deleting the third party defamatory remarks or the defamatory post entirely – in a reasonable time, Ms. Van Nes was also found to be liable for the third party defamatory comments. The court found that constructive knowledge was sufficient (actual knowledge was not required in this case) as “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 media platform, and the content of Ms. Van Nes’ contribution to the posts. [19]

The court summarized the rationale for its finding in the following way:

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. [20]

In making a decision regarding damages, the court weighed the seriousness of the post, the defendant’s replies, and the commentary of the friends – it was noted that for Mr. Pritchard, the accusation of paedophilic behaviour was the “single most effective means of destroying a teacher’s reputation and career”[21] – and found that a serious award of general and punitive damages was justified. The court hoped that the decision, completely exonerating Mr. Pritchard of any of the allegations made by Ms. Van Nes, would assist in rehabilitating Mr. Pritchard’s reputation and standing in the community; however, it noted that oftentimes once reputational damage has been done, it is difficult to ever truly remedy the situation. The court awarded general damages of $50,000 and punitive damages of $15,000.

Lessons from Pritchard

It is important to note that in Pritchard, damages for the underlying nuisance were $2,500, damages for the internet defamation were $65,000. Damages for defamation can wildly outnumber damages for nuisance and other small claims. While Pritchard was a decision out of British Columbia, it is easy to see how the rationale relied on by the judge could be relied upon and adopted in Ontario courts. The judge drew his conclusions based not only on British Columbia jurisprudence, but also on SCC and Ontario jurisprudence. Ontario courts have held that “Given the power of the Internet as a medium of communication, the factor of the mode and extent of publication is a particular significant consideration in assessing damages in Internet defamation cases.” [22]

The defendant in Pritchard claimed that she was only “venting” her frustrations with the state of the relationship with the plaintiff; however, the court refused to accept that a post that could have such a far reach could be dismissed so easily.

In the condominium context, as communication via email and other electronic formats becomes more prevalent, both boards and owners ought to take note of the potential for damages when posting information or opinion regarding events that occur in the condominium community online. The frustrations of community living are real; however, the impact of “venting” those frustrations via social media can have far reaching consequences, not only to the person impugned but also to the person doing the venting.

For Mr. Pritchard, it was his personal and professional public reputation that was damaged by the internet defamation, but for a condominium, unfounded disparaging remarks can negatively impact a condominium’s marketability. When a community gets a public reputation (warranted or not) for poor standards, mismanagement, or for mistreating owners, it can be very difficult to reverse the damage and present a positive image for prospective future owners.

There are, of course, defences available in order to justify any allegedly defamatory statements made. The courts have held that, in the condominium context, directors have a legitimate interest in being apprised of any allegations of misconduct in the condominium’s affairs. [23] Further, the defence of qualified privilege has been successfully argued on behalf of a condominium where the plaintiff can prove that statements made by the condominium board, whether at a meeting or circulated through a notice to all owners, were defamatory. [24] However, it is hard to see how these defences could possibly apply to a post made publicly with no purpose other than “venting” or with an aim of retaliating against an unkind neighbour or board member.

Consider, therefore, the following “Top 5” social media management policies to assist condominium communities and boards with navigating the new landscape:

1. Establish a social media policy. Create a list of “dos” and “don’ts”, and make sure that whomever is in charge of posting to any publicly accessible page consults and follows the list before any post goes live.

2. Avoid being emotive/embellishing. The devil is in the details, and you might think that you are just relaying the facts, but oftentimes emotions cloud our judgment and make their way into our retelling of any story. Look out for words that can be interpreted as judgment or negative descriptors (adjectives are usually the biggest culprits here: for e.g. dishonest, unfounded, ridiculous, outlandish, excessive…)

3. Consider the audience. The wider the audience, the greater the opportunity to run afoul of internet defamation laws. When posting to a condominium community Facebook page, consider making the page invite-only and visible only to members. Be careful not to take this too far, however. You don’t want to get into a situation where it appears as though the condominium board is hiding information from the community; you just want to make sure that information stays within the community as much as possible.

4. Designate specific individuals to do all of your social media posting. This will not only help streamline your message as it won’t get muddied by several voices all posting, but will also ensure that there is a calm final arbiter who reviews all posts before they are sent out widely. A final safety valve is always a good idea.

5. Ask: does this post fit within your brand? Not all condominium communities will have trademarked their brand or name, but many will have done so, and it is easy to think of Facebook, Twitter, and other social media sites as throwaways; however, protecting the brand is important across all platforms. Before you hit ‘post’ consider whether the content fits your brand and how you want your community to be seen by the wider world.

The two main issues to consider when posting to social media and trying to avoid a defamation claim are the twin issues of content and audience. It doesn’t matter if the audience is small if the content is defamatory. It may narrow the scope of a defamation claim to keep the communication to a small audience, but won’t help if the underlying communication is defamatory. We note that, given the nature of online communication, even when you have appropriate privacy settings, this does not prevent a friend from having lax settings and sharing any of your online words far and wide. In the case of online venting, it appears to be safest to follow our mother’s advice to not say anything at all, if we don’t have anything nice to say. This is why we recommend always having a second set of sober eyes to review all communications from the condominium before it gets sent or posted.

Consider, for example, the Ontario decision of Dyke v Metropolitan Toronto Condominium Corp. No. 972, 2013 ONSC 463. In that case, the owner complained repeatedly to the board about noise emanating from her upstairs neighbour who was conducting her dance classes in her unit. The board denied receiving complaints from the owner, and then baited her into a series of confrontations and made fraudulent complaints about her own conduct within her unit, which ultimately led to the owner moving out of the condominium. If the board had taken to social media to “vent” its frustrations regarding the owner, the board could have potentially been liable for internet defamation as well as damages for acting with an unfair disregard for the owner’s interests.

If the condominium discovers that a website or Facebook page has been created that is potentially defamatory, consider whether the content of the site is damaging to the brand or image the condominium has established. There are many ways in which disgruntled owners can take to social media and tarnish the condominium’s reputation in the eyes of the public. If such a website exists and you are unsure of how to proceed, we at Elia Associates would be happy to talk to the board about rights and next steps.

[1] Barrick Gold Corp v Lopehandia et al., 2004 CanLII 12938 (ONCA) para 28.

[2] Barrick Gold Corp v Lopehandia et al., 2004 CanLII 12938 (ONCA) para 31.

[3] Barrick Gold Corp v Lopehandia et al., 2004 CanLII 12938 (ONCA) para 34.

[4] Pritchard v Van Nes , 2016 BCSC 686, para 24.

[5] Pritchard v Van Nes , 2016 BCSC 686, para 29.

[6] Pritchard v Van Nes , 2016 BCSC 686, para 33.

[7] Pritchard v Van Nes , 2016 BCSC 686, para 39.

[8] Pritchard v Van Nes , 2016 BCSC 686, para 63.

[9] Grant v Torstar Corp ., 2009 SCC 61, para 28 (citations omitted).

[10] Pritchard v Van Nes , 2016 BCSC 686, para 81-82.

[11] Pritchard v Van Nes , 2016 BCSC 686, para 83.

[12] Pritchard v Van Nes , 2016 BCSC 686, para 84.

[13] Pritchard v Van Nes , 2016 BCSC 686, para 90.

[14] Weaver v Corcoran , 2015 BCSC 165.

[15] Niemela v Malamas , 2015 BCSC 2014.

[16] Pritchard v Van Nes , 2016 BCSC 686, para 98

[17] Pritchard v Van Nes , 2016 BCSC 686, para 108.

[18] Pritchard v Van Nes , 2016 BCSC 686, para 109.

[19] Pritchard v Van Nes , 2016 BCSC 686, para 110.

[20] Pritchard v Van Nes , 2016 BCSC 686, para 112.

[21] Pritchard v Van Nes , 2016 BCSC 686, para 122.

[22] Mina Mar Group Inc. v Divine , 2011 ONSC 1172, para 12.

[23] Wan v Lau , 2016 ONSC 127, para 39.

[24] McCullough v Cohen , 2000 CarswellOnt 3303, para 41.



By Kati Aubin - January 2017
Hons. B.A., J.D.

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Toll-Free:  1-866-446-0811


All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.


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