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Kenya Law / Blog / Case Summary: Supreme Court Holds Litigant Liable for Defamation for Comments Made by “Friends” on Her Facebook Post, its Republication therein and through Email.

Supreme Court Holds Litigant Liable for Defamation for Comments Made by “Friends” on Her Facebook Post, its Republication therein and through Email.

Supreme Court Holds Litigant Liable for Defamation for Comments Made by “Friends” on Her Facebook Post, its Republication therein and through Email.

Douglas James Pritchard V Katherine Anne Van Nes (Vaney)

Honourable Mr. Justice A. Saunders

April 20, 2016

Reported by Linda Awuor & Faith Wanjiku

Brief Facts:

The Plaintiff was a school teacher and he and his family had been neighbours of the Defendant’s family since 2008. There had been tensions between them since 2011. Those tensions gave rise to allegations of the Defendant using her property in such a manner as to constitute a nuisance, interfering with the Plaintiff’s enjoyment of his property. That included the running of a waterfall in the Defendant’s compound at night, her dog trespassing onto and defecating on the Plaintiff’s property, late night noise from parties, parking vehicles that blocked the Plaintiff’s driveway and two sons of the Defendant on more than one occasion entering the Plaintiff’s backyard without permission.

The tensions also led to the Defendant making a number of postings concerning the Plaintiff on the internet social platform Facebook, on June 9, 2014. The comments included statements calling the Plaintiff 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. The Defendant had more than 2,000 Facebook friends. She also had her privacy settings set to public, allowing her posts to be viewed by all Facebook users. Numerous comments made by the Defendant’s friends contained more explicit denunciations of the Plaintiff’s alleged behaviour. The Plaintiff thus sued for defamation and nuisance, seeking damages, grant of a permanent injunction and costs in his favour.

Issues

  1.  Whether the Defendant’s post on Facebook, its republication therein and through email and comments made by her friends made her liable for defamation.
  2. Whether the Defendant’s actions amounted to nuisance.
  3. What constituted the law of liability for defamatory republication.
  4. What factors were to be considered in assessment of defamation awards.
  5. What evidence was to be considered in awarding a higher amount of general damages by reasons of aggravation.

Held:

  1. The principles that underlay claims in nuisance were reviewed by the Supreme Court of Canada in St. Lawrence Cement Inc. v. Barrette. At common law, nuisance was a field of liability that focused on the harm suffered rather than on prohibited conduct. Nuisance was defined as unreasonable interference with the use of land. Whether the interference resulted from intentional, negligent or non-faulty conduct was of no consequence provided that the harm could be characterized as a nuisance. The interference had to be intolerable to an ordinary person. That was assessed by considering factors such as the nature, severity and duration of the interference, the character of the neighbourhood, the sensitivity of the Plaintiff’s use and the utility of the activity. The interference had to be substantial, which meant that compensation would not be awarded for trivial annoyances.
  2. The waterfall structure met the above tests. The Court did not have the benefit of any objective evidence such as noise level measurements. Nor did it have any evidence from any persons other than the Plaintiff and his wife as to the noise level. However, it did not have any reason to conclude that the Plaintiff was overly sensitive. On the whole, the Plaintiff’s evidence that the noise was a substantial interference causing him some distress, discomfort, and annoyance over the past four years was accepted. The noise level caused by the waterfalls during the night was unreasonable, by objective standards. The severity of the nuisance, however, fell towards the lower end of the range giving rise to damages.
  3. Over the period of roughly two years, as alleged, the numerous times that the Defendant’s dog trespassed onto and defecated on the Plaintiff’s property, constituted a nuisance. The Court characterized the misbehaviour of the Defendant’s sons, the late night noise from parties, and the issues surrounding parking to constitute unneighbourly acts that fell short of being nuisances. There was no doubt that these incidents aggravated the Plaintiff and exacerbated his feelings of frustration over the waterfall and the dog, but alone or taken as a whole these unneighbourly acts did not warrant a finding of tortious liability sounding in damages.
  4. In Grant v. Torstar Corp. a plaintiff in a defamation action was required to prove three things on a balance of probabilities 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. The Plaintiff was not required to show that the Defendant intended to do harm as the tort was one of strict liability.
  5. The Plaintiff had proven that the Defendant’s initial Facebook posts and her subsequent replies to her friends’ comments were defamatory, in that they tended to lower the Plaintiff’s reputation in the eyes of a reasonable person. The ordinary and natural meaning of the Defendant’s comments unequivocally described the Plaintiff as a nutter, a creep, and an abnormal person. They suggested that the Plaintiff was obsessed with videotaping her and her family under the guise of keeping a record of her dog. In that context she referred to his actions as borderline obsessive and abnormal. That implied that he now continuously had children under observation, coupling voyeurism with a prurient interest in young girls.
  6. The next sentence of her initial post supported the innuendo that the Plaintiff was a paedophile; she stated there was a red flag in that he worked for the school district. That term implied that his behaviour was alarming, as if he posed a threat to students. In the next sentence of the initial post, she reinforced the implied meaning of the foregoing by highlighting the 24/7 videotaping of her children. She then referenced what she purportedly understood to be his desire that she move the play centre out of the covenanted forest area, which appeared to have the effect of moving it closer to his property line; as if moving the children closer, so they could be observed, was his goal.
  7. The finding of the Defendant’s remarks having defamatory meaning by innuendo was also supported by the explicitly defamatory nature of the comments made by her friends. They clearly understood her meaning. The Defendant clearly identified the Plaintiff as the subject of her comments. She identified him by his first name, his occupation, the school and the school district in which he worked, and by his position as her next-door neighbour. The Defendant’s remarks, by their ordinary and natural meaning taken together, and by innuendo, were defamatory in meaning that the Plaintiff was a paedophile and was unfit to teach.
  8. The law of liability for republication of defamatory statements was as stated in The Law of Defamation in Canada. Republication occurred where the person to whom the words were originally published communicated them to someone else. The general rule was that a person was responsible only for his or her own defamatory publications, and not for their repetition by others. There was no liability for a republication by a third person that the Defendant neither authorized nor intended to be made unless the repetition was the natural and probable result of his or her publication. The Plaintiff was entitled to recover damages from the Defendant both for the original publication and for the republication by the person to whom it was initially published.
  9. It was uncontroversial that the distribution of information; comments, photographs, videos, links to items of interest amongst users was fundamental to the use of a social media platform such as Facebook. An individual user’s posts to their own page were automatically shared with friends who were linked to the user’s page. As friends reacted by commenting, the friends’ comments could be spread automatically to friends of friends. Such comments were solicited implicitly through the medium’s tools that allowed comment on a post and reply to a comment and use of the like button. Further distribution took place through the share function. That was intended only as a generic description; no detailed evidence was presented as to the specific features in operation on Facebook at the time of that incident. It appeared from the evidence that these basic features all played a role in the dissemination of the Defendant’s defamatory remarks.
  10. The Defendant, who had no privacy settings in place, had more than 2,000 friends. She implicitly authorized the republication of her posts. There was actual evidence of the republication at least to Ms. Regnier, who learned of the posts through the comments posted by several of her own friends. There was the indirect evidence through the comments made by neighbours who subsequently encountered the Plaintiff’s wife and remarked on the posts. There was also the possibility, at least, of republication having been made on Facebook by Mr. Parks who stated in one of his comments that he had shared her post on his own Facebook page. All of that republication through Facebook was the natural and probable result of the Defendant having posted her defamatory remarks. She was liable for all of the republication through Facebook.
  11. The implied authorization for republication that existed as a consequence of the nature of social media, and the structure of Facebook, was not limited to republication through the social media only. The Defendant had constructive knowledge of Mr. Parks’ comments, soon after they were made. Her silence, in the face of the statement that stated why don’t we let the world know, therefore effectively served as authorization for any and all republication by him, not limited to republication through Facebook. The Defendant ought to have known that her defamatory statements would spread, not only through Facebook. She was liable for republication through the email on that basis. In Crookes v. Newton, it was stated that publication had two components: an act that made the defamatory information available to a third party in a comprehensible form, and the receipt of the information by a third party in such a way that it was understood. The Plaintiff had to show that the act was deliberate. That required showing that the Defendant played more than a passive instrumental role in making the information available.
  12. The Defendant had an obligation to delete her initial posts, and the comments, in their entirety, as soon as those friends began posting defamatory comments of their own. The Defendant acquired knowledge of the defamatory comments of her friends, if not as they were being made, then at least very shortly thereafter. She had control of her Facebook page. She failed to act by way of deleting those comments or deleting the posts as a whole, within a reasonable time, given the gravity of the defamatory remarks and the ease with which deletion could be accomplished, being immediately. She was liable to the Plaintiff on that basis.
  13. In Leenen v. Canadian Broadcasting Corp. some factors to be considered in assessing defamation awards included the seriousness of the defamatory statement, identity of the accuser, breadth of the distribution of the publication of the libel, republication of the libel, failure to give the audience both sides of the picture and not presenting a balanced review, desire to increase one’s professional reputation or to increase ratings of a particular program, conduct of the Defendant and Defendant’s counsel through to the end of trial, absence or refusal of any retraction or apology and failure to establish a plea of justification.
  14. The seriousness of the Defendant’s defamatory Facebook post, her replies, and the comments of her friends could not be overstated. An accusation of paedophilic behaviour had to be the single most effective means of destroying a teacher’s reputation and career, not to mention the devastating effect on their life and individual dignity. The identity of the Plaintiff was especially relevant in the case. Through his engagement in extra-curricular activities he occupied a position of trust as a music teacher for children. Through hard work and dedication to his students, he had earned the community’s respect and admiration, as clearly established on the evidence. He now faced the challenge of repairing the damage the Defendant had caused, if that was even possible at the point.
  15. Recovering from false allegations of impropriety against children could not be easy for the Plaintiff. It was to be hoped that the reasons for judgment would assist. But the taint of suspicion was not easily expunged, and the reality was that regaining the stellar reputation he once enjoyed would not be quick or easy. In Hill v. Church of Scientology of Toronto, the pervading nature of defamation and its long term impact was succinctly stated that a defamatory statement could seep into the crevasses of the subconscious and lurk there ever ready to spring forth and spread its cancerous evil. The unfortunate impression left by a libel could last a lifetime. Seldom did the defamed person have the opportunity of replying and correcting the record in a manner that would truly remedy the situation. The Defendant’s conduct had a devastating impact on the Plaintiff, which continued to the day and into the future. That factor, in and of itself, merited a significant damages award.
  16. The Plaintiff asked to be awarded an even higher amount of general damages by reasons of aggravation. An increase in the award for general damages on account of aggravation had to be based on a finding that the Defendant inter alia was motivated by actual malice, established through intrinsic or extrinsic evidence. However, there was a withdrawal of the libelous statement made by the Defendant which wasn’t clearly aimed at obtaining the widest possible publicity in circumstances that were the most adverse possible to the Plaintiff as in the case. The Defendant’s subsequent actions bore none of the indicia of malice discussed above. She removed the posts relatively quickly, probably when the gravity of the situation became apparent to her through the police presence at the Plaintiff’s home; she did not seek to publicize the proceedings, giving rise to further dissemination of the defamation; she did not file a defence.Aggravated damages were therefore not in order.

General damages of $2,500 awarded for the nuisance claim.

General damages of $50,000 awarded for the defamation claim.

Additional punitive damages of $15,000 awarded.

Permanent injunction granted enjoining the Defendant, owners and occupiers of the property on which the Defendant’s residence was located from operating the waterfall structure between the hours of 10 p.m. and 7 a.m.

Defendant to bear costs.

Relevance to the Kenyan Situation

In the Constitution of Kenya, 2010, article 33 under the bill of rights provides for freedom of expression which does not extend to among others advocacy of hatred that constitutes ethnic incitement, vilification of others or incitement to cause harm. This would be the relevant provision to this case.

Section 29 of the Kenya Information and Communication Act, Cap 411A was recently declared unconstitutional in Geoffrey Andare v Attorney General & 2 others [2016]. It criminalized use of alicensed telecommunication system to send a grossly offensive message,a false one, or one that caused annoyance. It was found to be broad and uncertain and thus violated the above article. The Respondent had been sued for defamation over a post about the Petitioner on the social media platform Facebook.

However in Arthur Papa Odera v Peter O. Ekisa [2016], the Court found the Defendant liable for libel after even refusal by the Defendant to apologize and pull down the offending words from the Facebook platform. The Plaintiff was entitled to total relief of 5Million Kenya Shillings; Kenya Shillings 2 Million general damages, 1.5 Million exemplary damages and 1.5 million aggravated damages. The Court stated that articles 33 and 34 of the Constitution could not aid the defendant in the matter even if he were to claim enjoyment of the freedom of the media and of expression.  That freedom was subject to the limitations provided by the Constitution which included the need to respect the rights and freedoms of other individuals.

The Canadian judgement has however gone ahead to provide for a common law precedent to Kenya on a yet to be litigated issue. It has laid down factors to be considered on the issues. This as seen in the judgement is where a defendant can be found guilty over defamatory comments by third parties, that is, her friends on Facebook, especially if they don’t delete them. The case has also provided for liability over republication therein, where one has no privacy settings and thus the defamatory information can be disseminated to every Facebook user. Additionally, republication through email by a friend to the defendant which the defendant clearly is aware of and allows could attract the said liability.

  1. June 16, 2016

    Law is an important equilibrium for all members of the society. Very enlightening case.

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