Dog poo + Facebook = $65,000

That may be the best headline I’ve ever written. It should technically be “Dog poo + pedophilia + Facebook = $65,000”, but I was scared of what kind of click bait that would be. Thank you, B.C. Supreme Court!

So the B.C. Supreme Court ruled last week in the case of Pritchard v. Van Nes. And it really does involve dog poo (to some extent). Look, we all have neighbours we don’t like, and neighbours whose dogs shit on our lawn. But let this case be a lesson on how dog poo can turn really ugly.

Ok ok, enough dog poo fun let’s get to the facts. Actually the facts are kind of fun, albeit disturbing and they end up ruining a decent man’s reputation. So not fun in the end. The Pritchards and Van Nes’s live next to each other (still do!) in Abbotsford BC. Doug Pritchard is a music teacher at a middle school, by all accounts prior to this nasty business very successful and loved by all. In 2011, The Van Nes’s (am I doing that right? or should it be Van Neses?) installed some sort of crazy 25-foot fish pond dual-level waterfall thingy in the backyard, which made a crapload of noise and it ran 24/7. Pritchard complained, and neighbourly things went downhill from there. To wit:

• Loud late night Van Nes parties
• The Van Nes’s two sons going onto Pritchard’s property without permission
• The Van Nes’s dog routinely shitting on Pritchard’s property
• Constant illegal parking of Van Nes cars in front of Pritchard’s driveway and fire hydrant.

Pritchard often complained to the authorities. Then at one point, when he came home and  found his driveway blocked, Ms. Van Nes showed up, swearing like a sailor, and said “My husband is parked illegally … go ahead and call the [expletive] police”. Oh come on Judge Saunders, tell us what the expletive is! Anyway looks like Ms. Van Nes had reached some sort of breaking point, as she then:

(made) a number of postings concerning the plaintiff on the internet social platform Facebook, on June 9, 2014. The comments included statements calling Mr. Pritchard a “nutter” and a “creep”, and accusing him of using a system of cameras and mirrors to keep her backyard, and her children, under 24-hour surveillance. Ms. Van Nes had more than 2,000 Facebook “friends”, any of whom may have had copies of Ms. Van Nes’ posts transmitted to their own Facebook pages. Ms. Van Nes also had her privacy settings set to “Public”, allowing her posts to be viewed not only by her more than 2,000 “friends”, but by all Facebook users. Numerous comments made by Ms. Van Nes’ “friends” contained more explicit denunciations of the plaintiff’s alleged behaviour.

Ok Judge, how about telling us what was actually in the Facebook post? Voilà [many sic‘s in all these Facebook posts]:

“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 behavior…

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

Nudge nudge wink wink say no more. Oh wait, you did say more, in follow-up comments on the post:

Super stressed! I was just told my oldest will be taught music by him in middle school… Ewe

What’s a female sheep have to do with this? The comments on the post from her Facebook friends were even more explicit:

Sounds like a peeper to me. This way beyond creepy!

sounds like a person whom is very mentally disturbed//pedo wise ..scary [expletive]

IMPORTANT FACT ALERT. Van Nes made many comments in reply to her friends’ comments, the way you can on Facebook, not disagreeing with them and saying they made her laugh or whatever.

And finally the capper, from a friend, one Rick Parks, who also went on to share the post on his own timeline:

Why don’t we let the world know about Doug and his actions so other children, who he may teach in the future, are aware of what he does in his spare time.

Mr.  Parks then took it upon himself to email the school’s principal, telling the principal that Pritchard was videotaping and monitoring with mirrors the Van Nes kids, and that Pritchard was a “potential paedophile”. Fun fact btw! There was no videotaping or monitoring with mirrors whatsoever. At one point Ms Pritchard used her phone to snap some pics and vids of the dog and waterfall, but that was it.

OK so Pritchard found out about the posts, but at least the principal and others at the school did not believe he was a pedophile. Pritchard printed out the posts and filed a police complaint. Within 28 hours, Van Nes had deleted the original post and comments thereon.

But my readers are internet-savvy and you know how this goes. Nothing disappears. By then the original post had been shared, copied, and proliferated all over Facebook. As the Judge says: ‘The phrase “gone viral” would seem to be an apt description.’

The effect on Pritchard was devastating. He lost his love of teaching. He felt he had lost the trust of parents and teachers. Kids were removed from his music program by concerned parents. He cut back on his participation in a bunch of programs. He was scared to touch students’ fingers just to show them how to play their instruments (yikes, phrasing). He felt awkward, humiliated and stressed when out in public. His car got keyed. His doorbell was rung late at night. His own kids are worried and upset. He thinks he will never be able to get another teaching job (and he’s right).

Ms. Van Nes never apologized to Pritchard directly. She felt bad though. Then, like many of us:

She said that she was sorry that she used this way to “vent”, but said that social media is “a large part of my life”.

Think before you vent on social media, people. It might cost you. 65k!

Enough Facts. Get to the Law, Lawyer-guy.

Quiet, you. OK first you should know there was some procedural stuff, like the fact that this “case” was really a follow-up to a first “case”. The first case was Pritchard suing Van Nes for nuisance and defamation, which Van Nes decided not to defend. So Pritchard got a default judgment against her (“Default? Woohoo! The two sweetest words in the English language! De-fault! De-fault!”). This case was really just to decide how much Van Nes should have to pay depending on how liable she was, and to get an injunction to get that friggin’ waterfall to stop.

So first the Judge goes through the nuisance claim, yada yada, the waterfall thing is a nuisance, the dog shitting on the lawn is a nuisance, the noise is a nuisance, bla bla bla, here’s $2500. Also, injunct this, Ms. Van Nes, and turn that fucking waterfall thing off between 10 p.m. and 7 a.m. Whatever, who cares, this is an internet law blog and it’s the Facebook defamation we want to know about.

And ooh boy, have we got some juicy law stuff here. And some very very very important conclusions of law, so pay attention! First, Pritchard claims that the Facebook posts said a whole bunch of shit about him that wasn’t true (which is defamation), either explicitly or by implication / innuendo, like that he was a pedophile, he was videotaping and stalking the kids, that he was just generally a bad guy, etc. Now I am serious you want to pay attention, because Pritchard claims there are three different ways he was  defamed:

1. The original post of Van Nes;
2. The republication on other people’s Facebook timelines of the original post and Van Nes’ comments; and
3. The comments on Van Nes’ post by her Facebook friends.

Pritchard says that Van Nes should be responsible for all three of those. I bolded that because it is important. Sure she should be responsible for her own words, but for other people repeating her words? And then for other people’s words??? The fuck? Well maybe, let’s see!

OK let’s get the first one out of the way. Yes, it’s defamation, yes, she’s liable. The Court reviews the leading Canadian defamation case Grant v Torstar (which I’ve explained before) yada yada the words reduced the reputation of the plaintiff in the eyes of a reasonable person (which is the standard for defamation). The interesting thing in this part which I haven’t explained to you before is that defamation can happen by innuendo as well. So Van Nes says  in her posts and comments that he’s videotaping 24/7, then says that there are “young daughters” living at her house, and then says that should be a “red flag” for the school board. That is innuendo he is a pedophile, and defamatory in and of itself without explicitly saying he is one.

Next, is Van Nes responsible for the republication of the post and her comments on her friends’ (and friends of friends, etc.) own timelines and pages? Yes! Whoa! Hold the phone! This is juicy. Judge Saunders explains how posts and comments can proliferate on Facebook through friends and friends of friends and so forth. Interesting legal thing-y side note for the legal types – no Facebook expert was called, but the Judge says social media, and Facebook especially, is “so ubiquitous that the court is able to take judicial notice of some aspects of their nature and operation”. And then the Judge says:

In my view the nature of Facebook as a social media platform and its structure mean 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”. The defendant must be taken to have implicitly authorized the republication of her posts.

Wow. “Implicit authorization” of republication. That’s something. The judge adds that there was that Parks dude who said he would share the post, and Van Nes said nothing. More implicit authorization! There is also sort of a subset of the 2nd mode of defamation, that same Parks dude who said “why don’t we let the world know” and then emailed the school. The judge finds that Van Nes is liable for that email too! Because she didn’t tell him not to, and:

Ms. Van Nes ought to have known that her defamatory statements would spread, not only through Facebook.

I hope you people are taking notes not to say shit on Facebook.

Now, the third mode of defamation, the comments her friends made on her  post. She is liable for those too!!!!11!!???111!!! Holy crap! Now, admittedly, the judge realizes this is a bit crazy, as he says it is “still an emerging legal issue in Canadian law.” But he does some good legal analysis here. He reminds us of Crookes v. Newton, the Supreme Court case where they said just linking to defamation was not defamation (I explained all that here, go read it if you’re bored). But also in Crookes, Justice Deschamps wrote this:

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

Which Judge Saunders highlighted. The Judge goes on to review other jurisprudence where people who had control of third party comments, like in a forum or comments on an online newspaper story. Combining those cases with Crookes, he summarizes:

…provide support for there being a test for establishing liability for third party defamatory material with three elements: 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.

I can almost buy that. You know there is crap like defamation, you have control over it but do nothing about it. The Judge says that by this test, Van Nes is liable for the comments of her friends. She knew about all their comments, as she made nine replies during the day. She did nothing to remove them in a “reasonable time”. Remember that important fact alert above about how she was replying to the comments? Here:

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.

The Judge importantly distinguishes this active participation compared to a situation of a “passive provider of an instrument for comment” like so many other internet actors. The Judge then spends some time distinguishing this case from a New Zealand case where there was no liability for third party comments. But in this case, the original post was inflammatory in and of itself, and the original poster kept the conversation going herself. The Judge acknowledges it is kind of harsh to have someone responsible for third party comments, but he’s got a big finish:

In my view the potential in the use of internet-based social media platforms for reputations to be ruined in an instant, through publication of defamatory statements to a virtually limitless audience, ought to lead to the common law responding, incrementally, in the direction of extending protection against harm in appropriate cases. This is such a case.

Amen, brother. There is some detail and legal analysis about how much should be awarded, but you’re tired by now and you read the headline spoiler so you know the Judge awarded $65k.

Superterrific Happy Hour Analysis Time!

Chill the fuck out on social media people. Don’t egg people on, or you may be responsible for what they say, especially if you started it.