Our limited right to free speech

By Leslie Campbell, May 2016

BC’s defamation laws are downgrading our democracy.

Shawnigan Lake protestTHIS EDITION BRINGS YOU an update on the Shawnigan Lake situation by Judith Lavoie. When we learned of threats of legal action against citizens and media outlets for alleged defamation from the company operating the controversial mine and reclamation site in the area, we decided to investigate. There’s little doubt people have been surprised and upset by the letters from South Island Resource Management’s lawyer. Besides the fears and outrage expressed by those willing to be interviewed by Lavoie, one fellow asked “What about free speech?”

That’s a good question, actually. And the answer is complicated (and rather chilling). Though free expression is guaranteed under Canada’s Charter of Rights and Freedoms, it is qualified by other laws, chief among them those around defamation. Defamation is communication about a person that tends to hurt that person’s (or corporation’s) reputation.

In defamation suits, the burden of proof is on the defendant. David F. Sutherland, a Vancouver lawyer who has defended both activists and media against claims of defamation, says, “Any defamatory statement is presumed to be false, it’s presumed to be malicious for an improper purpose, and it’s presumed to have cost real-dollar damage.” So if cited for defamation, you are guilty until you prove your innocence or justification. Since corporations have the same legal rights as persons,  and since the Supreme Court of Canada has decided that the dignity of a person is every bit as important as freedom of speech, well, as Sutherland puts it, “Right there, we’ve really got a problem.” 

Adding to this problem is the fact that large corporations generally have far deeper pockets to pay for litigation, as well as advertising and public relations, all of which they can write off as business expenses. The playing field between citizens speaking out on political matters and corporations has become “tilted” says Sutherland. Others have pronounced Canada as one of the most backward English-speaking nations when it comes to protecting freedom of expression.

 

MEDIA ALSO EXPERIENCE the “chilling” effects of legal threats claiming defamation. Focus has been threatened a number of times over the years so I can attest to how time-consuming and worrisome such threats can be. 

But, given the current laws, journalists and their publishers have to be willing to take risks if they want to do good work. Sutherland, who represents many BC newsrooms on defamation matters, agrees. “Absolutely, and it’s a terrible risk…People make honest mistakes, and every time you publish a story, you shouldn’t be putting the whole printing press and the legacy of your children, and your house and your family at risk. It’s disproportionate.”

In the Shawnigan Lake issue, we know that, besides citizens who have spoken out, at least Shaw TV, rabble.ca and Huffington Post, along with their reporters or producers, received demands for apologies, retractions and compensation from South Island Resource Management (SIRM). In some cases apologies were made. Shaw, for instance, ran an apology on air saying Citizen’s Forum’s volunteer producer Jack Etkin and a guest’s statements in a November show “may have left the false impression that the company…is deliberately poisoning or planning to poison lake water.” Shaw, says Etkin, became increasingly restrictive around what he could say on air in general, and that led him to step aside as the show’s producer. After ignoring the first letter he got from SIRM’s lawyer, in late April Etkin received a Notice of Civil Claim.

Other media may have been threatened, but they aren’t talking. Nor are they reporting on SIRM’s defamation claims against citizens.

 

THERE'S ALSO BEEN A DEARTH of media coverage around developments in another defamation claim. In late January, after four years of litigation, the BC Supreme Court ruled on Taseko Mines Limited v. Western Canada Wilderness Committee (WCWC).

Five brief 2012 articles on WCWC’s website were cited in the suit. Some claimed the Taseko project could threaten thousands of fish as it would turn a nearby lake into a “dump site for toxic tailings.” 

After Taseko filed a defamation suit relating to three articles, WCWC published two new articles which claimed Taseko was using the litigation process to silence critics on a matter of public importance. It described Taseko’s efforts as a “strategic lawsuit against public participation” or SLAPP. Not to be outdone, Taseko then broadened its defamation claim to include these later articles. 

In January the Honourable Justice Gordon Funt ruled that some of the articles were not defamatory and all of them were “fair comment,” one of the allowable justifications for defamation (“truth” and “responsible communication” being the other two). About the two articles describing Taseko’s action as a SLAPP, the judge agreed they were defamatory: they “tend to lower Taseko’s reputation in the eyes of a reasonable person. A law-abiding person does not use litigation improperly to silence critics exercising democratic rights.” However, he said, “The defence of fair comment applies. The language was clearly comment—an opinion or view. A person could honestly express the opinion or view based on the factual context.” 

Justice Funt also awarded “special costs” to WCWC and “rebuked” Taseko because the firm continued to seek punitive damages even after an environmental assessment showed that “adverse environmental impacts were similar to those the defendants had described.” He pointed out that Taseko’s actions in this regard amounted to “an economic threat” that “may serve to silence critics.”

It was a big vindication for WCWC—and a big reprimand for Taseko—but Taseko appealed the decision on February 19. Joe Foy of WCWC stated, “Even after a court decision that was overwhelmingly in our favour, Taseko is now back at it—costing additional time and money and making it more difficult to exercise our rights to free speech…We feel that this case is a prime example of why SLAPP suits are so damaging to public discourse in BC,” Foy said. “This is no way to run a democracy. There ought to be a law.”

 

BUT WHAT LAW? There are lots of examples to consider around the world. In the US close to 30 states have some form of anti-SLAPP legislation. Quebec and Ontario have introduced it as well. Typically such legislation gives courts increased powers to determine whether a lawsuit’s primary purpose is to intimidate the defendant and/or others from speaking out on a public issue—and if so to dismiss it in a relatively short time frame. 

But Sutherland feels such legislation is “doomed to failure” because the very nature of a court is to want to hear all the evidence and not prejudge a case.

Besides, he argues, it would not prevent big corporations from spending $100,000 on a team of lawyers to argue that it’s not a SLAPP. “It’s their dimension: Spending money on intricate arguments is what they do,” says Sutherland. An activist—or small media company—with limited resources simply can’t compete in that “dimension.” 

Sutherland, who represented anti-fish-farm activist Don Staniford in a lengthy defamation suit by the giant aquaculture firm Mainstream (and ultimately lost), favours the approach taken by Australia in its Uniform Defamation Act of 2005. Explained Sutherland, “That Act says that a corporation that has more than 10 employees cannot sue for defamation. As a result, businesses such as Taseko Mines suing WCWC…or fish farm conglomerates [suing Staniford], would have to make their case in injurious falsehood.” This statute shifts the burden of proof to the plaintiff who must prove the falsity and malice of a statement along with the actual economic loss it resulted in. 

Besides that redress, corporations also have such tools as advertising and public relations campaigns to defend their reputations. These interfere far less with freedom of expression than defamation suits. As it stands, says Sutherland, our defamation law “is another example of the fact that Canada is a very low grade democracy.”

SIRM’s lawyer, as Judith Lavoie’s article points out, claims his letters threatening defamation charges are in good faith and are not SLAPPs. But they still raise questions about the laws we live under—laws that many of us do not understand enough—and which appear to need changing to preserve healthy debate.

Please do not view any of the above as legal advice. 

Leslie Campbell and Focus try hard not to be overly chilled in the course of reporting and commenting on regional issues. Donations to our research and legal fund welcome!