2004 BCSC 137 Carter v. BC Federation of Foster Parents Association et al

Before: The Honourable Mr. Justice Taylor

Reasons for Judgment

Counsel for Plaintiff:	C.G. Fletcher & M. Katerburg
Counsel for Defendant, B.C. Federation of Foster Parents Association	D.T. McKnight
Counsel for Defendants Kim Dupont, Bill Reid, Pauline Reid, Audrey Anger, Kay Dahl	E. Chesterly
Date and Place of Trial/Hearing:	July 7 & 8, 2003 Prince George, B.C. August 29, 2003 Vancouver, B.C.

[1] These are applications brought by both the plaintiff and the defendant B.C. Federation of Foster Parents Association (the “Federation”) in an action for defamation begun by the plaintiff against the Federation and other defendants.

[2] The Federation applies pursuant to Rule 18A for an order that the plaintiff’s claims be dismissed with costs.

[3] The plaintiff applies for an order for a declaration that:

1. the Federation republished statements made in the “Bopeeps Forum” by sending the defendant Dupont’s correspondence to other persons by means of the Federation Forum and by means of the Federation’s Newsletter. This will be referred to as “Bopeep’s comments.”

2. the Federation published words defamatory to the plaintiff in that it published the following words on the Federation Forum:

Yet another scandal with a government-funded association.

1. The president of the BCFPA, Kay Dahl, quits and is under investigation [sic] but most of the board cheer.

2. AGM soon approaching and ex-president Liza Carter thinking of running. Do you remember how she ran things temper tantrums, a foul mouth and a private contract with the MC & F. (conflict of interest)?

[4] This will be referred to as the “Dberlane comment.”

[5] While not the mirror of each other a determination of one of the applications becomes despositive of the other in terms of the claims being made against the Federation.

[6] By agreement of counsel, the Federation’s application proceeded first although the issues were argued in an interrelated manner in respect of the plaintiff’s application.

[7] Mr. Chesterly, counsel for the defendants Kim Dupont (“Dupont”), Audrey Anger (“Anger”), Bill & Pauline Reid (“Reids”), and Kay Dahl (“Dahl”) sought to intervene to support the position of the Federation although any determination of the issues raised in the applications of the plaintiff and the Federation would not resolve the plaintiff’s claims as against the defendants represented by Mr. Chesterly.

[8] I permitted Mr. Chesterly to make submissions on the basis that any resolution of the issues raised by these applications may have an effect on his clients.

[9] The hearing of these applications began in Prince George on July 7 & 8 and was adjourned for continuation on August 29 in Vancouver. Plaintiff’s counsel on July 7, 2003, filed a motion to amend the statement of claim and on August 29, 2003. He informed me that he was not proceeding at that time to make submissions on the application to amend but would set such application down for hearing at a future date.

[10] In November, 2002, the plaintiff discontinued against Blue Frogg Enterprises Inc.(Blue Frogg), the forum provider for the Federation. The defendants, represented by Mr. McKnight (the Federation) and Mr. Chesterly (Dupont, Anger, Reids and Dahl) have issued third-party proceedings against Blue Frogg but have not yet served these proceedings upon Blue Frogg pending the outcome of these applications.

[11] Counsel further informed me that the trial date which had been scheduled for December 3, 2003, would be adjourned.

FACTUAL MATRIX

[12] The Federation is a registered society and is a province-wide organisation of foster parents, by foster parents, for the purpose of bringing together such parents, social workers and other interested persons in the care of foster children. The Federation provides training, education and support for foster parents.

[13] The plaintiff has been involved in the work of the Federation since becoming a foster parent in 1992 and has held office in the Federation, most recently, as its president from May, 2000, to May, 2002.

[14] The Network is an unincorporated group of foster parents consisting of the defendants Dupont, Reids, Penny Seguin, Stephen Hakes, Heather Murphy and Glenn LaFrance. This Network has existed since 1996. It is not affiliated with the Federation.

[15] The Network periodically published a “Network newsletter,” copies of which were sent to the Federation board members and others by Dupont. This newsletter was widely distributed by Dupont to others including media outlets and government agencies such as the Ministry of Children and Families.

[16] The Network newsletter contains within it, among other information, an address for a Network forum website at http://www.delphi.com/bcffp/start.

[17] This website has been referred to as the “Bopeep’s Forum.”

[18] The plaintiff, on her examination for discovery, testified that the Bopeep’s Forum was a website outside of the Federation’s control.

[19] The assertions of defamatory statements (“Bopeep’s comments”) alleged by the plaintiff were to be found on the Bopeep Forum.

[20] The staff of the Federation would, as a matter of practice, forward to individual board members any documents addressed to the Federation board of directors. These included the Network newsletter.

[21] In 1999 the Federation created its own website and in early 2000 Joan Weinstob, the then executive director of the Federation, proposed the formation of a “chat room” to provide foster parents a medium by which they could directly discuss issues of concern between themselves.

[22] This chat room, once established, was referred to as the Federation Forum.

[23] This chat room was established and run by an internet service provider, Blue Frogg.

[24] The chat room allowed those having access to it to anonymously post materials on the Federation Forum, thus allowing foster parents to discuss matters freely and without any concerns that what they were discussing was censored (or would be censored) by the Federation.

[25] On February 24, 2000, the “Dberlane comment” was posted on the Federation Forum and shortly thereafter the plaintiff posted her own response to it.

[26] By the Spring of 2000, the Board of the Federation became aware of the Dberlane comment being posted on the Forum. In order to assert a degree of responsibility on those using the chat room, the Federation decided to post what is referred to as “netiquette rules” and requested the server, Blue Frogg, to edit the postings on the Federation Forum as needed and to post the rules within 24 hours.

[27] The Federation staff and board members did not access the Forum after May, 2000, believing that the offensive material had been removed from it.

[28] On or about February 4, 2002, the plaintiff became aware that the Federation Forum was still an active website, one which as she deposes “was still visible to a worldwide audience.”

[29] By May 11, 2002, the abuse of the right to post material on the Federation Forum became a matter of concern to the executive officers of the Federation and they determined that the Federation Forum site should be temporarily closed.

[30] By May 19, 2002, the board of directors confirmed the action by the executive officers to close the Federation Forum until a secure method could be implemented to ensure that defamatory material was not posted and that all offensive material would be removed from the Forum.

[31] Following the passing of the resolution of the board of directors on May 19, 2002, Phil Mynott, a board member, contacted Diana Ospina, the host of the Federation Forum, and informed her of the board’s decision and asked her to implement it. Mr. Mynott thereafter believed that these instructions had been carried out. Ms. Ospina thereafter advised all concerned that the executive of the Federation had ordered that the Federation Forum be closed.

[32] The plaintiff, as president of the Federation, also believed after May, 2000, that the Forum had been closed.

[33] In fact, the Forum was not closed, but was only altered to a “read-only” state that prohibited any new posting.

[34] The plaintiff issued her original statement of claim in September 18, 2001. That statement of claim was based on the allegations with respect to the Bopeeps’ comment. It did not refer to the Dberlane comment.

[35] On March 12, 2002, the plaintiff’s solicitor, responding to a demand for particulars set forth the plaintiff’s claims against the Federation as follows:

Re: Carter v. BCFFPA et al.

In further answer to your demand for particulars, and further to our telephone conversation of March 12, 2002, you may rely on our representation that the complaint against your client is that your client forwarded letters to its members, which letters were prepared by the Network, and which letters contained the address of the forum. To the best of our knowledge, none of those letters which were forwarded contained comments which, in themselves, were defamatory. Of course, if such should surface during discovery of your client, our pleadings and our position might well then change.

[36] As will be noted, no reference is made in that correspondence to the Dberlane comment.

[37] The plaintiff testified at her examination for discovery that she learned in March, 2002, that the Federation Forum had not been closed and that it was still in “read only” state.

[38] On May 27, 2002, the statement of claim was amended in part by the additions of paragraph 53 to 56 which included allegations of defamation based upon the continued posting of the Dberlane comment on the Federation Forum.

[39] Its service upon the Federation was the first notice that the Federation had that the Forum had not been closed as it had directed in its resolution of May 19, 2000, and that the Dberlane comment had remained on the Forum.

[40] The amended statement of defence filed October 10, 2002, in paras. 9 to 11 specifically, denies the plaintiff’s allegation with respect to the Dberlane comment and in para. 12 raises the Limitation Act R.S.B.C. 1996, c.266, as a defence to these claims based upon the Dberlane comment.

[41] As I observed earlier, an application was filed on July 7, 2003, to further amend the statement of claim. At plaintiff’s counsel’s behest, that was not proceeded with. The effect of such an amendment, if allowed, would have been to amend the pleadings to reflect the dates of publication that if found to be established, would bring the plaintiff under the curtain of the Limitation Act (supra) in terms of the Dberlane comment.

[42] Over the objection of defence counsel, I permitted the plaintiff’s affidavit of July 7, 2003, to be filed. That affidavit merely added to the narrative contained in the plaintiff’s affidavit No. 3. This was the inclusion of the specific Bopeep postings of February 23 & 24, 2000. It adds little to what was previously deposed save for the actual text of the postings to the Network forum.

[43] The statement of claim in its amended form or proposed amended form makes no reference to the date of posting of the Dberlane comment to the Federation’s Forum.

[44] Upon being served with the May 27, 2002, amended statement of claim, the Federation learned that the Federation Forum had not been “cleansed” as had been requested of the server, Blue Frogg, following the May 19, resolution. Rather, it learned that it had only been altered so that further postings could not be made to it and that Blue Frogg had left the Forum in a read-only form.

[45] Thereafter, the Federation sought to contact the server, Blue Frogg, to close the Forum site entirely. The server, from emails attached to the affidavits of staff of the Federation appears to have been less than enthusiastic to do so and replied to the Federation on November 4, 2002, as follows:

The host of the Forum can do this. You may want to contact the host and make the same request. We have no reason to close the Forum.

[46] Thereafter, through the assistance of counsel for both the Federation and Blue Frogg the Federation Forum was closed in early December, 2002.

[47] The plaintiff, as I observed earlier, was the Federation’s president in the two-year period ending May, 2002. The plaintiff asserts that she requested the Federation staff to delete the Network Rorum’s address from the Network newsletter.

[48] Nowhere in the records of the Federation is such a request noted, and the plaintiff agrees that no motion was made to the board to do so.

[49] The liability with respect to the Bopeep’s comments arises only from the fact that the Federation forwarded copies of the Network’s newsletters to members of the Federation’s board of directors. These newsletters, while containing no defamatory comments themselves, did contain the address for the Network’s Forum which did contain, among other innocent comments, the Bopeep comment alleged to have been defamatory of the plaintiff.

THE LAW

[50] The essence of a successful claim of defamation is founded upon the establishment of three factors:

1. That the words are defamatory.

2. That the defendant was responsible for the publishing of the words to another person.

3. That the plaintiff was a person defamed.

See Clement Gatley on Liable and Slander, 8^th ed., (London: Suite & Maxwell 1981, at p.123. See also Raymond Brown, The Law of Defamation in Canada, 2^nd ed., (Scarborough, Ont.: Carswell, 1994) at p.345.

The Publication of the Bopeep Forum Link

[51] On the evidence before me, there is nothing in the network newsletter to suggest a defamatory comment if a reader of the network newsletter did not more than read the newsletter. In order to read the alleged defamatory comments, it was necessary to go to the Bopeep Forum. The address of the Bopeep Forum was listed in the Network newsletter. This comment was contained among a myriad of other unobjectionable comments posted on that site (i.e. the Bopeep Forum).

[52] The law has held liable those who perpetuate defamatory comments by permitting such comments to remain at premises controlled by them even though they did not author or authorize the original publication. See Byrne v. Deane, [1937] 2 All E.R. 204, Hellar v. Biancol 111 Cal. App. 2d 424 (Cal.1952), Tacket v. General Motors Corp. 836 F.2d 1042 (7^th Cir.1987).

[53] Additionally, liability has been found where a defendant wilfully directed others to defamatory statements when he neither authored nor authorized their publications on premises not controlled by him. See Hird v. Wood (1894), 38 S.J. 234 (C.A).

[54] Common to each of these two lines of authorities is that the defendant had knowledge of the defamatory words and it lay within his power to remove the offending words and he failed to do so or he directed others to the words.

[55] It is argued by the plaintiff that merely informing others in the context of forwarding a newsletter that makes reference to a website without reference or knowledge of its contents constitutes the publication of the defamatory words contained within the Bopeep Forum which was at the referred website.

[56] Some analogous assistance may be found in cases where reference was made to a magazine article that contains the defamatory words without repetition of the article.

[57] In MacFadden v. Anthony, 117 N.Y.S. (2d) 520 (Sup.Ct.N.Y. 1952), Eder, J. of the New York County Supreme Court held that such reference did not amount to a republication of the libel contained in the magazine article.

[58] Eder, J. relied upon an earlier New York Court of Appeal decision in Kline v. Biben, 296 N.Y. 638 (N.Y. Ct. App. 1946) that held that the simple mention of an article that contained defamatory comments without reference to the comments could not amount to a republication of the defamatory comments.

[59] If in such cases such mention of a magazine article could not constitute a republishing of a defamatory comment contained in the article, then what occurred here was even more remote as a reference was made to a website that contained all manner of participants’ comments including the Bopeep comment.

[60] I am supported in this view by the fact that there is no evidence that those in the Federation responsible for the forwarding of the newsletter itself and its reference to the forum website had any knowledge of the offending comments contained in the website itself. In this respect the Federation was an innocent disseminator.

[61] As held by Romer, L.J. in Vizetelly v. Mudie’s Select Library Ltd., [1900] 2 Q.B. 170, at p.180:

. . .The result of the cases is I think that, as regards a person who is not the printer or the first or main publisher of a work which contains a libel, but has only taken, what I may call, a subordinate part in disseminating it, in considering whether there has been publication of it by him, the particular circumstances under which he disseminated the work must be considered. If he did it in the ordinary way of his business, the nature of the business and the way in which it was conducted must be looked at; and, if he succeeds in shewing [sic] (1.) that he was innocent of any knowledge of the libel contained in the work disseminated by him, (2.) that there was nothing in the work or the circumstances under which it came to him or was disseminated by him which ought to have led him to suppose that it contained a libel, and (3.) that when the work was disseminated by him, it was not by any negligence on his part that he did not know that it contained libel, the, although the dissemination of the work by him was prima facie publication of it, he may nevertheless, on proof of the before-mentioned facts, be held not to have published it.

[62] The essence of that view was adopted by Fedah, J. in Slack v. Ad-Rite Associates Ltd.,[1998] O.J. No.5446 (Q.L.) (Ont.Gen.Div.), at para.17:

In general, every person who takes part in the publication of defamatory material bears responsibility for its publication, including writers, editors, printers and distributors. However, a person who acts merely as a distributor may be able to rely on the defence of innocent dissemination. In the Law of Defamation in Canada Toronto: Carswell, 1987) at pages 283-4, Brown explains the defence:

Persons who play a “subordinate role” in the dissemination of defamatory material, such as vendors of books, magazines, and newspapers, or carriers, librarians and other distributors are not liable for its publication where they are totally ignorant of the defamatory contents of the material, and have no reason to suspect it is libellous. . [emphasis added]

The rationale underlying this defence is that distributors have no opportunity to read all the material that passes through their hands: see Goldsmith v. Sperrings Ltd., [1977] 1 W.L.R. 478 (C.A.). Likewise, liability does not affect person in the chain of distribution who do only mechanical or menial acts: see Lobay v. Workers and Farmers Publishing Association Ltd., [1939] 2 D.L.R. 272 (Man.Q.B.).

[63] Thus, while the onus of proof lies upon the defendant, on the uncontroverted evidence contained in the affidavits, the Federation, I am satisfied, has established the criteria necessary to absolve itself of any responsibility with respect to any publication of the offending Bopeep’s comments.

[64] The newsletters contain nothing in and of themselves that is suggestive of defamatory comments and thus nothing existed to lead the Federation through its staff to suppose that there was a defamatory reference contained within the Bopeep Forum.

[65] Likewise, there was no basis to suggest negligence on the part of the Federation staff in not knowing about the defamatory comments contained within the Bopeep website, essentially a chat room for members of the Network who were not necessarily members of the Federation or expressed views of the Federation.

[66] In respect to this Bopeep comment, I am satisfied there can be no basis for liability on the part of the Federation.

The Dberlane Comment

[67] I now turn to the Dberlane comment. The pleadings in respect to this alleged act of defamation are found in paragraphs 53 to 56 of the amended statement of claim.

53. The Federation created and maintained its own discussion forum on the Internet (“the Federation site”).

54. The following statement posted on the Federation site and published of the plaintiff is such as to disparage the reputation of the plaintiff, and tends to lower her in the estimation of right-thinking members of society generally and to expose her to hatred, ridicule, scandal, odium, contempt and similar feelings:

a. Yet another scandal with the Government funded association

1. The President of BCFFPA Kay Dahl quits and is under investigation but most of the board cheer.

2. AGM soon approaching and ex-President Liza Carter thinking of running. Do you remember how she ran things, temper tantrums [sic], a foul mouth and a private contract with the MC&F (Conflict of interest).

55. The reasonably knowledgeable person would know that the impugned statement found on the Federation site refers to the plaintiff.

56. To the knowledge of the Federation, the Federation site advertises the forum and urges the reader to go to the forum. As such, the Federation has republished the defamatory and threatening statements contained on the forum.

[68] The Federation argues that the plaintiff’s claims in respect of this allegation of defamation are statute barred.

[69] Section 3(2)(c) of the Limitation Act reads as follows:

3(2) After the expiration of 2 years after the date on which the right to do so arose a person may not bring any of the following actions:

. . .

[70] The statement of claim makes no reference to when the Federation purportedly published this libel or when the plaintiff says she discovered the comment on the Federation Forum.

[71] The evidence in the affidavit material is that the Dberlane comments were posted on the Federation Forum on February 24, 2000, and that by March 2, 2000, the plaintiff had read them and had posted her own response to them.

[72] The plaintiff’s evidence is that as of February 4, 2002, she became aware, despite the Federation having taken the steps that I described in May, 2000, that the Federation Forum was still active in a read-only form and as such the Dberlane comments were still posted to be read by those accessing the Federation Forum.

[73] The plaintiff first advanced her claims in respect of the Dberlane comment in her amended statement of claim filed on May 27, 2002, a point in time more than two years after she first became aware of their existence on the Federation Forum.

[74] The plaintiff argues that each time the posted defamatory comments were accessed there is a republication. In short, to use the jargon of the internet, a “hit” occurs whenever someone accesses the website and may read the Dberlane comment. The plaintiff argues that whenever a “hit” occurs there is a republication and thus the limitation period commences the moment of the most recent “hit” occurring. This, the plaintiff argues, occurred when she accessed the Federation Forum on February 4, 2002, to learn that the Dberlane comments were still posted on the Forum and that the Federation Forum had remained in a read-only format.

[75] The issues at this stage are two fold:

1. Does the start of the limitation period run from when the comments were admittedly posted in February 24, 2000, and discovered by the plaintiff shortly thereafter?

2. Does the continued existence of the posted comments amount to a republication whenever anyone accesses the website (Forum) thus revealing the offending comments to the viewer as occurred to the plaintiff on February 4, 2002?

[76] Similar questions arose in Firth v. The State of New York, 731 N.Y.S. (2d) 244 (N.Y. App.Div.2001). The defendant, in December, 1996, posted to its website a report which included allegedly defamatory comments about the plaintiff. The plaintiff filed a notice of intention to file a claim relating to these comments as required by the statute of limitations in the State of New York but did not commence the action until March, 1998. Under the New York statute the action had to be commenced within one year of publication.

[77] The plaintiff argued that the republication of the libel occurred each time the report was accessed by an internet user. The appeal court concluded absent evidence, that the State had modified its website that access to the website did not constitute republication and the limitation period began to run from the date of the posting to the website as noted in the plaintiff’s notice of intention to make a claim. Subsequent access did not recommence the running of the limitation period

[78] The issue of discoverability, accordingly, did not arise given that the plaintiff had filed a notice of intention to file a claim.

[79] A different view was expressed in the judgment of Horland, J. in Godfrey v. Demon Internet Ltd., [1999] 4 All E.R. 342 in a case that dealt with the issue of republication of material posted on a news server of the defendant. At para.33 Horland J. held as follows:

In my judgment the defendant, whenever they transmit and whenever there is transmitted from the storage of its news server a defamatory posting, publish that posting to any subscriber to its ISP [internet server provider] who accesses the newsgroup containing that posting. Thus every time one of the defendant’s customers accesses ‘soc cultre thai’ and sees that posting defamatory of the plaintiff there is a publication to that customer.

[80] I referred earlier to the proposed but as of yet unargued application to amend the statement of claim for a second time. I accept the observations of McEachern, C.J.B.C. in Bow Valley Resource Services v. Kansa General Insurance Company (1991), 56 B.C.L.R. (2d) 337, [1991] B.C.J. 2012 (B.C.C.A), that in litigation such amendments may logically be expected to occur as the litigation proceeds to, or is, in trial in order to provide a complete and proper basis for the resolution of the issues between parties.

[81] In this sense, the pleadings, albeit unamended as illustrated by the various affidavits, raised quite clearly what the issue with respect to the Dberlane comment and the limitation defence is or will be: When did the publication of these alleged defamatory comments occur? Did it occur when first posted to the Federation Forum and discovered by the plaintiff (i.e. March, 2000), or did it occur when the last access to the Forum was made? Such an amendment of the pleadings as proposed may be reasonably anticipated as occurring.

[82] If it is the earlier date, then the limitation defence applies. If it is the latter, then it would not as the last “hit” would have been made February 24, 2002, and the amended statement of claim, which first pleaded the Dberlane comment, was issued in May 27, 2002.

[83] There seems no issue that in between these two dates the Federation Forum was changed to a “read-only” status so that new postings could not be made. No change was made to the postings even though it had been the intention and instructions of the Federation to close the Federation Forum entirely. Those instructions were not complied with by the service provider.

[84] If the plaintiff is correct in terms of a republication occurring each time a user accesses the forum and such a user was able to read the Dberlane comment, quite apart from the myriad of other innocent postings, then a site provider (as opposed to a service provider such as Blue Frogg) such as the Federation could never avail itself of any limitation period defence.

[85] There is simply no evidence of any access to the Forum in the period following February, 2000, by the plaintiff until the discovery on February 2, 2002, that the Federation Forum was in a format other than what the board of directors had resolved it to be by its resolution of May 19, 2002.

[86] There is evidence that Mr. Mynott and Ms. Ashby as board members both believed that the site was closed as had been ordered by the board. The plaintiff herself was also of that belief during the period of her presidency with the Federation.

[87] But I would not wish to determine this question of the applicability of the limitations defence upon the basis of a dirth of evidence as to the access to the Forum in the period of time following May 19, 2000, up to and including February, 2002, or when the plaintiff deposes she discovered the Dberlane posting still existed on the Forum site.

[88] For the purpose of this issue I assume that at some time in that time frame there was access to the Forum and that whoever accessed the Forum viewed the posted Dberlane comments quite apart from whatever other postings may have existed on the Federation Forum site.

[89] In my view, to extend the limitation period beyond May 19, 2000, by when the plaintiff and the Federation were aware of the comments and the latter took steps to remediate it, would be to say that there can be no limitation period for a provider of a chat room such as the Federation Forum.

[90] The plaintiff discovered the comments and put the Federation on notice effectively by May 12, 2000. This resulted in the executive committee’s decision to close the website and was subsequently ratified a week later by the board of directors.

[91] In my view, the very latest it can be said that the plaintiff discovered the alleged libel was May 19, 2000, and the amended statement of claim was filed on May 27, 2002.

[92] That others may have accessed the Federation Forum does not amount to a republication given that the Forum was never modified and that there was the reasonably held belief by the board and the plaintiff that it had been shut down.

[93] The English cases, referred to in argument, have an important and underlying distinction from those decided in the United States and the wording of the limitation legislation in Canada. In particular, the provinces of Ontario and British Columbia have the concept of discoverability that is absent in the English legislation.

[94] In British Columbia that is set out in s.6(4)(a) of the Limitation Act, R.S.B.C. 1996, c.266:

(4) Time does not begin to run against a plaintiff with respect to an action referred to in subsection (3) until the identity of the defendant is known to the plaintiff and those facts within the plaintiff’s means of knowledge are such that a reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard those facts as showing that

(a) an action on the cause of action would, apart from the effect of the expiration of a limitation period, have a reasonable prospect of success,

[95] In the realm of Internet there is good reason for the application of s.6(4)(a) in that a defamed person might be unaware of such comments long after they have been posted to a forum or chat room. But once aware, it is incumbent upon those affected by such comments to take steps to clear their name. They simply cannot let the defamation perpetuate itself without commencing their actions within the requisite time.

[96] That the board was in error in believing its instructions to its server had been complied with, in my view, does not detract from that concept.

[97] Here the plaintiff, if offended in February, 2000, or at the very latest May 19, 2000, to the extent that she felt aggrieved, was required to commence her action at that time or within two years of that date. She did not do so, and subsequently, her claims with respect to Dberlane comment are barred from further proceedings.

[98] The Federation raised an alternate argument if the limitation defence did not apply. Given my conclusions that it is applicable, I nevertheless feel obliged to comment upon that argument.

[99] That submission is that a “chat room” (i.e. the Federation Forum) operated not as publisher of comments made by third-party in the “chat room,” but rather as a telephone company which is not liable for comments made by those who use its telephone lines.

[100] That analogy, in my view, is flawed in that the chat room provides a form of archiving comments which are accessible by those who use the chat room.

[101] There is no Canadian jurisprudence on the subject, but American courts have considered this issue.

[102] In Cubby v. CompuServe Inc., 776 F. Supp. 135 (U.S. Dist. Ct. 1991) Leisure, J. held that the defendant as a provider of access to Forum’s chat rooms exercised no control over the contents of the chat room and thus it was not a publisher, but rather a distributor. As a distributor that neither knew nor had reason to know of the contents, it was an innocent disseminator and therefore not liable.

[103] That decision was followed by the enactment of the Telecommunications Act of 1996, Pub.L.104-104, 110 Stat.56 (1996) [short title: Communications Decency Act] which amended 47 U.S.C. by adding Section 230. Section 230(c)(1) provides that:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

[104] In Lunney v. Prodigy Services Company 94 N.Y. (2d) 242 (N.Y. Ct. App. 1991) a five-judge panel of the New York Court of Appeal declined to apply retroactive provisions of the Communications Decency Act to an internet chat room provider who provided accounts to an impostor who used them to transmit offensive material in the plaintiff’s name. While concluding that the defendant had reserved his right to screen chat rooms or the bulletin board messages, the Court of Appeal held that the defendant had a passive role with respect to the messages posted and could not be concluded to be a publisher.

[105] Here, the Federation provided the chat room, i.e. the Federation Forum, through an internet provider, Blue Frogg Enterprises Inc., and although “it was hosted by a volunteer of the Federation,” it did not exercise any editorial role over the forum and until others began to post offensive material such as the Dberlane comment, it played a passive role.

[106] Once aware of the Dberlane comment, the defendant took steps to close the forum and eliminate the postings. It proceeded after its executive resolution of May 12, 2000, and the board of director’s resolution of May 19, 2000, on the basis that that had in fact occurred.

[107] There is no authority as to the dispatch with which offensive material must be removed from such a facility as a chat room once discovered by the chat room provider. However, in Tacket (supra), Easterbrook, J. referred to the Restatement (Second) of Torts as follows:

One who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on lands or chattels in his possession or under his control is subject to liability for its continued publication.

[108] Here, the Federation knew of the postings in 2000, but believed they had been eliminated only to discover in 2002 that despite its efforts to close or purge the postings in 2000, the Federation Forum remained in a read-only format. The failure, to see that its directions of May 19, 2000, were implemented cannot amount to intentional, and or unreasonable failure given that the plaintiff herself was the president of the Federation and also believed that board’s resolution of May 19, 2000, had been acted upon as did other members of the Federation’s Board of Directors.

[109] In my view, the Federation in 2000 acted reasonably and when informed in 2002 of the continued existence of the Dberlane comments being available to be read by those who accessed the Forum in its then read-only format, took reasonable steps to effect the complete closure of the Forum delayed in part by the obduration of the service provider Blue Frogg.

[110] Accordingly, if I am incorrect with respect to the preliminary position with respect to the limitation defence, the Federation is nevertheless entitled to the relief sought on this secondary basis.

[111] In summary, I find that the Federation is not liable for publication of the Bopeep Forum link as there was nothing to suggest that the Federation knew or ought to have known of the alleged libellous material contained in the forum.

[112] As for the Dberlane comment posted on the Federation Forum, I find that the plaintiff’s claims in this regard are barred by the Limitation Act. In the alternative, I would dismiss the plaintiff’s claim given the Federation’s reasonable efforts to shut the forum down and their reasonable belief that this was done.

[113] Having come to these conclusions on the Federation’s application, it is not necessary to specifically deal with the plaintiff’s application sought for in the declarations as against the Federation.

[114] Counsel did not argue the questions of costs. If counsel wish to make submissions, they may do so in writing. Counsel should in such case discuss among themselves a schedule if submissions are to be made in writing and if unable to agree, should contact the trial coordinator in Prince George.

“J.D. Taylor, J.”
The Honourable Mr. Justice J.D. Taylor

Citation:	*Carter v. BC Federation of Foster Parents Ass. et al.,*
	2004 BCSC 137