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When to consider legal action as a result of a post identifying you on social media:

Social Media has provided the technology for disseminating false and libellous information easily; at what stage is it appropriate to consider legal action?

What is Defamation?

Libel:  A False statement made in writing, print or digital format which others have seen.

The definition is wide and encompasses any form of representation which lowers an individual's reputation;

Slander: A spoken form of defamation where no public record exists.

Three things to be established for a defamation claim:

1. The Words or posting refers to the Plaintiff;

2. The words were published by the defendant to a third party; 

3. The words were defamatory ( A reasonable person would believe they tend to lower the plaintiff's reputation in the community). 

Defences to Defamation

Truth - The defendants have the onus of proving the truth of the statement;

Fair Comment-  If an individual provides their opinion on a topic of public significance, this is potentially an available defence, but they will need to show the statement was truthful and factually accurate without malicious intent.

Privilege - Most commonly used in legal or parliamentary proceedings. 

Innocent Dissemination- When a person is sued for the dissemination of defamatory information, they may have a defence that they were unaware of the defamatory comments. However, if an individual knowingly disseminates defamatory information, they will run the risk of also being sued. 

Noteworthy Cases

In 2016, the British Columbia Supreme Court released its decision in Pritchard v Van Nes (2016 BCSC 686) - this involved a neighbour dispute that resulted in several false and unjustified Facebook postings about the Plaintiff, who was a high school teacher, irrespective of the fact the postings were deleted 27 hours after posting. The Supreme Court found that the defendant was responsible for :

1) Her defamatory statements about the plaintiff;

2) Also the repetitious republications through both Facebook posts and email, of the defendant's defamatory statements because an implied authorization for republication was inherent as a result of the defendant's original posting on her Facebook page;

3) The Defendant was liable for the defamatory statements about the plaintiff posted as comments to her Facebook page by her 'friends'. 

Olsen v Facebook Inc [2016 NSSC 155]—This was a 2016 Nova Scotia Case involving defamatory anonymous Facebook comments made concerning a municipality's CAO and councillor. The Applicants sought an order requiring Facebook to disclose information to assist in identifying the anonymous authors of the comments.

The Court held that the nature and number of comments by two of the Facebook account holder override any reasonable expectation that they should be entitled to remain anonymous and ordered Facebook to disclose their information.

(The information provided is not intended as legal advice. Each case and situation will be fact dependent)

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