Pro-life Group's Defamation Claim Against "Online Protestor" Allowed To Proceed

• Published date: 18 October 2022
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Discrimination, Disability & Sexual Harassment, Libel & Defamation, Social Media
• Law Firm: Gardiner Roberts LLP
• Author: Mr Stephen Thiele

Social media continues to be a fertile ground for the development of the law. Social media has become a tool for significant political debate and a place where political foes rally their supporters to engage in protests and counter-protests. However, political discourse on social media is not intended to be a free for all. A user cannot use social media to harass or defame others even though the topic at issue may qualify as a matter of public interest.

In 40 Days for Life v. Dietrich, 2022 ONSC 5588, the court was required to determine whether the plaintiff's claim for defamation, online harassment, breach of contract, inducing breach of contract, fraud and conspiracy should be allowed to proceed or be dismissed on a motion brought under section 137.1 of the Courts of Justice Act (the "CJA").

The plaintiff was a Texas-based pro-life group that advocated for the end of abortion and had at least nine locations in Ontario. In the fall of 2021, the group organized protests at a hospital which caused the defendant, D, to express her views on reproductive freedom by publishing 32 videos on TikTok between October 2 and October 29, 2021. While D contended that her videos expressed her opinions on the group's anti-abortion protesting, the group objected to fifteen videos, which it felt were, among other things, defamatory and a form of harassment. Four of the videos encouraged others to "falsely" sign-up for a 40 days "vigil" that the group was organizing, while another video encouraged "shopping cart" abandonment on the group's online store. The pro-life group contended that 8 of the videos were defamatory.

With respect to their action for defamation, the group alleged that D had characterized it as engaging in harassment, spreading false information and fearmongering. The group contended that this damaged its reputation "as a peaceful advocate for change."

D felt that her videos involved expression on a matter of public interest and that she had valid defences to the causes of actions raised by the plaintiff. Accordingly, she sought to strike the group's claim under section 137.1 of the CJA.

A motion under section 137.1 of the CJA contains shifting burdens. First, the defendant must establish that the expression at issue involves a matter of public interest. If this threshold is met, then the burden shifts to the plaintiff to establish under section 137.4(a) that the claim advanced has substantial merit and that the defendant has no valid defence, and under...