Commercial Litigation and Dispute Resolution Blog

Everyone is entitled to their own opinions.

Most of us were taught this maxim at an early age. But while the fundamental principle behind this saying holds true today, the reality is a little more complicated, especially with current technology. Now, with a single cellphone, practically anyone can publish their opinions online for the entire world to see. This has led to the discovery by many persons (especially in recent times) that tweeting or posting their “unpleasant” opinions online can result in losing their jobs. Everyone is still entitled to their own opinions, but not necessarily to publishing it, at least not without consequences. In fact, you might not even be legally entitled to publishing your opinion if it is considered defamation.

So when is an opinion considered defamation? That’s also a little more complicated, especially given the B.C. Court of Appeal’s recent reversal of a trial judge’s finding that a particular opinion was not defamatory.

The case in question, Weaver v. Ball, involved Dr. Andrew Weaver and Dr. Timothy Ball. Dr. Weaver is a professor in the School of Earth and Ocean Sciences at the University of Victoria, and was the former leader of the B.C. Green Party. Dr. Ball is a retired professor from the Department of Geography at the University of Winnipeg, and holds a Ph.D. in climatology.

On January 10, 2011, Dr. Ball published an article on the internet that suggests Dr. Weaver, among other things:

• is professionally incompetent;
• teaches climate science from a biased perspective;
• consistently refuses to participate in climate science debates; and
• had his students disrupt Dr. Ball’s presentation at the University of Victoria.

Dr. Weaver came across this article on the internet and, naturally, was upset by it. Dr. Weaver subsequently sued Dr. Ball for defamation. But after undergoing a trial, the trial judge determined that Dr. Ball’s article was not defamatory and dismissed Dr. Weaver’s lawsuit.

The B.C. Court of Appeal (the “BCCA”) disagreed. In reversing the trial judge’s decision, the BCCA pointed out three key reasons in the trial judge’s decision that are incorrect:

• Ball’s article was a poorly written opinion piece that lacked credible arguments;
• Weaver did not consider his reputation to be genuinely threatened; and
• Weaver is a public figure in the realm of climate science, heavily involved in the public debate on climate science and thus should expect such criticism and scrutiny.

The trial judge provided these reasons after going through the legal tests for determining whether an opinion is defamatory. One of these legal tests is the requirement that the opinion tends to lower the reputation of the plaintiff in the eyes of a reasonable person. However, the BCCA disagreed with the first two reasons as it determined that:

• the article was not so poorly written that it lacked credibility as its deficiencies are not apparent just by reading the article, and the trial judge only understood its flaws and inaccuracies after hearing such evidence at trial; and
• Weaver’s action in posting Dr. Ball’s article on his “wall of hate” outside his office is not objective proof that Dr. Weaver did not consider the article threatening to his reputation.

The BCCA also disagreed with the trial judge’s third reason, which applied elements of the fair comment defense. This defense shields against defamation claims when the opinion in question fulfills the following:

• it is on a matter of public interest;
• it is based on provable facts;
• it is recognizable as an opinion;
• it is, objectively-speaking, an honest opinion; and
• it was made without malice.

The trial judge did not go through a step-by-step analysis of the fair comment defence, but noted that because Dr. Ball’s article consists of opinions pertaining to a well-known figure in the climate science debate, which is a matter of public interest, these factors mitigate the impact of Dr. Ball’s derogatory words.

The BCCA, however, determined that the trial judge blurred the fair comment defence with the legal test for defamation. The BCCA held that in doing so, the trial judge gave excessive weight to his considerations regarding the public nature of the climate science debate, and to the fact that Dr. Ball’s statements are opinions. In fact, the BCCA pointed out that while Dr. Ball’s statements in his article are partly opinion-based, the fact that the article is authored by Dr. Ball and discusses matters in his field of expertise gives the article more credence than that of a regular opinion. The BCCA subsequently ruled that Dr. Ball’s article is defamatory, but sent the case back to the trial court for a full determination of the fair comment defense.

So, before you hit that Tweet/Post/Send button on your next social media or blog post that might “cross the line,” you may want to think about whether it could get you fired or even sued. It might just be your opinion, but it could also be considered defamation.