Update on SLAPPs

In response to last week’s post on the report of the Advisory Panel to the Attorney General on strategic litigation against public participation (SLAPP), one relevant case was brought to my attention. On July 20, the Superior Court of Justice released its newsworthy decision in Morris v. Johnson, 2011 ONSC 3996 (CanLII). As many of you may recall, the ire of many bloggers was incited by the plaintiff’s motion for an order requiring bloggers to disclose the identity information of anonymous defendants who had allegedly defamed her through their comments on a blog. The plaintiff was a former mayor of Aurora and the allegedly defamatory comments were made in relation to her re-election campaign After applying the three factors established in Warman v. Fournier, 2010 ONSC 2126 (CanLII), Brown J. ultimately denied this motion.

For those of you that have not read the decision, the motion reflected many of the qualities of a SLAPP.[1] As indicated in the decision, the plaintiff’s motion was without substantial merit. For example, the plaintiff did not set out the allegedly defamatory words in her statement of claim, despite being an element of the tort. The court noted that she could have obtained the verbatim defamatory statements through the impugned blog. The claim did not appear to have been brought in good faith since the identities of the anonymous bloggers may have been revealed during documentary discovery or examination for discovery yet the plaintiff did not employ those procedural steps. Like many SLAPPs, the claim was brought against individuals exercising their right to freedom of speech in relation to a political event. Notwithstanding the plaintiff’s failure in the courtroom, the SLAPP has achieved its ulterior purpose: the chilling effect on free speech by bloggers who, despite the court’s denial of the motion, may be hesitant to publicize their opinions in fear of being sued. Even after the determination of this motion, its SLAPP-like effect is ongoing with the plaintiff’s application for leave to appeal at the Ontario Court of Appeal, which is anticipated to be heard next week.

Brief Summary of the Decision

The courts have developed a body of case law which provides that the right to free speech is limited to the extent that it is abused to ruin the reputations of private citizens or individuals in public office. This case law reflects the court’s responsibility to “balance the competing interests of privacy, the public interest in promoting the administration of justice by providing [a plaintiff] with the information sought to pursue her claim and the underlying values of freedom of expression and political speech.” In other words, the courts cannot favour the interests of either plaintiffs or defendants and must avoid drawing arbitrary lines in the sand to appease one group over the other.

To fulfill that responsibility, the court applied the factors developed in Warman, which are as follows: (i) whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances; (ii) whether the plaintiff has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith; (iii) whether the plaintiff  has taken reasonable steps to identify the anonymous party and has been unable to do so; and (iv) whether the public interests favouring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.

Brown J. applied the Warman factors to hold that the motion should not be granted. In relation to the first factor, she found that the anonymous bloggers had a “reasonable expectation of anonymity in the particular circumstances, given that they were free to identify themselves, to write under a pseudonym or remain anonymous with respect to the website, and, in this case, the anonymous [bloggers] chose to write under a pseudonym.”

The second factor was not satisfied because the plaintiff had not set forth the specific words complained of as being defamatory, and thus did not establish a prima facie case of defamation.

The third factor was also not satisfied because the plaintiff did not proceed to either documentary discovery or examination for discovery pursuant to the discovery process under the Rules of Civil Procedure, in the context of which she could have obtained those identities sought.

Finally, since the plaintiff did not establish a prima facie case, the public interest favouring disclosure did not outweigh the legitimate interests in freedom of expression and the right to privacy of the persons sought to be identified.

A Blessing in Disguise?

Although the plaintiff’s application for leave to appeal is arguably a SLAPP tactic, the granting of leave to appeal by the Court of Appeal may actually provide a benefit to the public at large. At the very least, a pronouncement by the province’s highest court will provide the public with greater insight on how the courts will approach SLAPP-like civil litigation.  This insight would be instrumental given the absence of any momentum on the part of the government to address SLAPPs. As well, a pronouncement by the Court of Appeal will circumscribe the limits on the right to free speech so to provide private citizens and individuals in public office some protection against defamation.

[1] For a definition of a SLAPP, see my previous post, available online here.