[Update: 13 February 2014 - We have received word that Staniford's application for leave to appeal to the Supreme Court of Canada has been denied. In addition to meaning that Don is on the hook for $75,000 plus legal costs, it also means that we will not get the benefit of further direction from the Supreme Court on what is meant by fair comment, at least in the context of this case.]
A children’s rhyme tells how a battle is lost because a horseshoe on a horse delivering a critical message is thrown off “for the want of a nail.” Well, on Monday, July 22nd the BC Court of Appeal ordered well-known anti-fish farm activist Don Staniford to pay $75,000 in damages because the mock cigarette packages he had made criticizing Norwegian fish farm companies lacked footnotes or other appropriate citations.
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Drawing more lessons from a fish farm defamation case
We reported last September how Staniford’s mock cigarette packages – suggesting a parallel between the effects of cigarettes and farmed salmon – had resulted in a lawsuit from Norwegian fish farm giant, Mainstream Canada. We drew a series of lessons for fish farm activists from Staniford’s win in the BC Supreme Court. The BC Court of Appeal has now reversed that decision, holding that Staniford is not protected by the law of “fair comment”, and ordering him to pay $25,000 in damages and $50,000 in punitive damages, as well as a large portion of Mainstream’s legal fees.
What are the lessons to be drawn from Staniford’s loss?
Whenever a large multinational company is able to successfully sue an individual activist for speaking his or her mind (even if some people might find his or her views unappealing), there are lessons to be drawn about power and access to the courts. Obviously a great many fish farm, and other, activists are very concerned by the BC Court of Appeal decision, and there is a real risk that the decision will chill legitimate public debate.
That being said, it is important not to overreact to this decision.
For the most part, the lessons that we drew from Staniford’s win are still valid – indeed, they are more important than ever:
- Your conduct during the trial matters
- Be clear in the scope of your campaign
- The defence of fair comment provides protection for activists
The BC Court of Appeal judgment does not alter any of these conclusions, although we do need to add a cautionary note or two regarding the defence of fair comment.
The BC Court of Appeal accepted that Staniford had met all of the requirements of the defence of comment except one. The court accepted:
- That his mock-cigarette packages were comments, and not factual claims;
- There is factual information on the basis of which a reasonable person could honestly believe the comments made by Mr. Staniford (and that he did in fact honestly believe those comments); and
- Mr. Staniford was not reckless and his dominant purpose was not to injure Mainstream out of spite or animosity.
However, they found that Staniford was required to communicate to his audience the factual basis that led him to believe that the “comments” were true. In the words of the BC Court of Appeal, the facts on which Mr. Staniford based his comments were not “sufficiently stated”:
By stating that it would take a determined reader to locate the facts upon which Mr. Staniford was basing his comments, the trial judge implicitly acknowledged that there was not a clear reference to the facts that were neither notorious nor contained in the defamatory publications. … In my view, a reference to [the Hites Paper] was essential to enable readers of the defamatory comments to be in a position to make up their own minds about the merits of the comments. [Paras. 38, 41]
In other words, a clear reference to the Hites Paper on Don’s website as forming the basis for his cigarette packages might have won Staniford the case. In essence, Staniford is paying $75,000 because he didn’t refer clearly enough to his sources.
How to "footnote" properly
So the silver lining for activists is that as long as you clearly indicate where the factual information comes from you may well be able to claim a defence of fair comment, should you be sued for defamation. The Supreme Court of Canada has put the test as follows:
(a) the comment must be on a matter of public interest;
(b) the comment must be based on fact;
(c) the comment, though it can include inferences of fact, must be recognisable as comment;
(d) the comment must satisfy the following objective test: could any [person] honestly express that opinion on the proved facts?
(e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was [subjectively] actuated by express malice.
The BC Court of Appeal decision adds the important qualification that the factual basis must either be “notorious”, meaning that everyone knows it to be true, or must be “sufficiently stated”, so that an interested reader could check the original sources and determine if they agree with the comment or not.
Exactly what “sufficiently state” means will vary from case to case, although it’s clear that the reader should not have to go digging too far to find the required information. In the case of web-based defamation, it seems like the web pages containing the comments should ideally link directly to any studies or reported facts on which the comment is based. Certainly, the Court of Appeal didn’t feel that it was enough to have the information available somewhere on a website, and seemed to suggest that clear directions to the document need to be included right on the web page with the defamatory comments.
It is not sufficient for the defence of fair comment for facts upon which the comments were made to be contained on website pages that were not alleged to contain defamatory comments or in hyperlinked documents unless those other pages or hyperlinked documents were identified by a clear reference to contain such facts. … If the defamatory publication advises the reader that a hyperlinked document contains facts upon which the defamatory comment is based and sets out where in the document they are contained, then there may well be a sufficient reference to those facts. [paras. 63 to 64]
With the benefit of hindsight, for example, Staniford might have included a hyperlink with each individual cigarette package graphic, redirecting the reader to a resource page related to the claim on that particular package.
That being said, by suggesting that it is necessary to determine “where in [a] document [the relevant facts] are contained” the BC Court of Appeal could be taken as requiring a level of formal citation that is more appropriate to academic literature than activism, or, for that matter, most journalism. Graphic or voice-based communications might, in particular, find it problematic to precisely identify all relevant sources right on the relevant document.
In our view, the BC Court of Appeal’s decision should not be taken as literally requiring footnoting, but instead as simply requiring the information on which a defamatory comment is based to be readily available to a reader. If a bumper sticker, for example, directs a reader to a web page, then that web page should either offer further information about the bumper sticker, or clearly and conveniently redirect the interested reader to a page that does.
That being said, the BC Court of Appeal decision has left enough ambiguity on this point that we can probably expect the issue to be argued in future court cases. The clearer an activist can be in indicating the factual basis for her claims, the more likely that she will be able to successfully assert the defence of fair comment.
Despite the defence of fair comment …
A major lesson, and one that we’ve unfortunately seen before, is that deep pocketed companies have the power to drag their critics into court. Staniford does not have the resources to pay a $75,000 damages award, and presumably Mainstream knows that. It looks as if the real value of this litigation for them is to silence him and (perhaps) to discourage other critics.
Last October we asked you:
David Sutherland, Don’s lawyer, has suggested that BC follow Australia’s example of banning corporate lawsuits in defamation. Others have suggested that BC needs legislation to protect people against Strategic Lawsuit Against Public Participation (SLAPPs) (Don characterized this lawsuit as a SLAPP). What do you think? How should we protect ordinary citizens against being sued when they speak out against large companies? Does the law currently strike the right balance?
Does Mainstream’s win change the answers to these questions?
By Andrew Gage, Staff Lawyer
Graphic from Global Alliance Against Industrial Aquaculture