The Lawyers Weekly - January 20, 2012

In a precedent-setting decision, the British Columbia Court of Appeal has affirmed that a father who used the Internet and Facebook to publicly denigrate his child’s mother must pay her $40,000 for defamation and invasion of privacy.

The recent ruling by Chief Justice Lance Finch and Justices Ian Donald and Richard Low upholds two lower court orders from 2010 that also punished Patrick Michael Nesbitt’s “reprehensible” conduct toward Wendy Neufeld by ordering him to pay her special legal costs in addition to the damages.

“Given the groundless and malicious nature of Dr. Nesbitt’s conduct in this litigation, those orders were clearly merited,” the judges said Dec. 22 in reserved reasons, after dismissing Nesbitt’s appeals from the Bench on Dec. 2.

The decision is thought to be the first of its kind.

“I’m not aware of any other social media defamation cases of family members [in Canada] that have resulted in a judgment,” said Mark Perry, who teaches information technology law at the University of Western Ontario in London.

Rollie Thompson, a family law professor with the Schulich School of Law at Dalhousie University in Halifax, told The Lawyers Weekly that awards for defamation tied to family law disputes are unusual, although not unheard of. (Several years ago, for example, an Ontario man sued his wife for suggesting to third parties during a custody dispute that he was violent, and had links to organized crime.)

However, in addressing online defamation, Nesbitt v. Neufeld stands as a timely warning to parents and ex-spouses who are tempted to publicly disparage each other online, said family law practitioner Aaron Franks at Toronto’s Epstein Cole LLP.

“If a person actually goes out of their way to set up a website defaming a spouse, that is really just painting a big target on their back in terms of a defamation lawsuit,” said Franks, who is also an editor with Reports of Family Law.

He suggested lawyers might want to emphasize to some clients that their comments on social networking sites are not private and can come back to haunt them.

“It is certainly becoming a
very popular area of discovery,”
he said. “People are at the point
now where they realize that any-
thing they write in e-mail could
certainly show up in court, but
people tend to not yet realize
that what they put on their
Facebook wall, or other social
networking sites, could actually
be used [against them in litiga-
tion]—and people post the
most intimate details of their
personal lives sometimes on
their Facebook pages.”
The Court of Appeal con-
cluded that the findings of fact
by the court below were “amply
supported by the evidence” and
that the lower court made no
errors of law or principle in
holding Nesbitt liable for def-
amation, and for the tort of
breach of privacy under s. 1 of
the B.C. Privacy Act.

Cole & Partners
RSM Richter Inc.*

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