Commercial Litigation and Dispute Resolution Blog

More often than not, sequels can’t live up to the original.  Case in point: Jaws 2.  But this blog post sequel aims to be better, like The Dark Knight.

In Part I of this blog post, we looked at the basic facts of Weaver v. Ball. The case involved two well-known scholars, Dr. Andrew Weaver and Dr. Timothy Ball, who have diametrically opposing viewpoints regarding climate change. In 2011, Dr. Ball published an article on the internet that essentially accused Dr. Weaver of professional incompetence and bias. Dr. Weaver subsequently sued Dr. Ball for defamation.

After presiding over an 11-day trial for the case, the trial judge determined that Dr. Ball’s article was not defamatory. But the B.C. Court of Appeal (the “BCCA”) recently disagreed and raised several key issues with the judge’s decision, including:

1. the perceived quality of the article;
2. its harm; and
3. the fair comment defense.

The BCCA’s rationale merits a closer look, especially given that we will be seeing more of such online defamation cases in the future.

Quality

One of the key issues with the trial judge’s reasoning in Weaver v. Ball is the perceived quality of the defamatory article.

The quality of an allegedly defamatory statement is important because it must be viewed objectively through the eyes of a reasonable person. If a statement contains numerous grammatical errors, is barely intelligible, or contains outrageous hyperboles, it’s not going to be given much credence by ordinary members of the public, aka reasonable persons. For example, in Acumen Law Corporation v. Nguyen, a former client posted a negative review online about their lawyer stating, in part

Anywhere else would be moore helpful.worstest lawyer.would not recommend

The judge found that the review “lacked any semblance of credibility or polish” and could not have met the requisite legal test of lowering the reputation of the plaintiff in the eyes of a reasonable person.

Dr. Ball’s article in Weaver v. Ball, on the other hand, contained full sentences, neat paragraphs, and no discernible grammatical errors. The article, at first glance, even appears cogent. Why, then, did the trial judge find that Dr. Ball’s article was “rife with errors and inaccuracies?”

The issue was that these errors and inaccuracies are not readily apparent to ordinary readers. For example, the trial judge cited the article’s claim that Dr. Weaver has consistently refused to participate in climate change debates, as being baseless. But an ordinary reader could not have known this. The trial judge only understood this flaw after hearing evidence pertaining to it throughout the course of the 11-day trial. The trial judge’s understanding of the article’s various errors was thus subjective, and not the understanding of an ordinary member of the public as required under defamation law.

Harm

The second key issue pertains to the perceived harm of the article, or lack thereof in this case.

The trial judge reasoned that because Dr. Weaver appeared cavalier about Dr. Ball’s article by posting it on his “wall of hate” outside of his university office, alongside articles from other “climate doubters,” Dr. Weaver did not actually consider the article to be harmful to his reputation.

However, whether defamation occurred must be judged objectively. Dr. Weaver’s feelings and reaction to the article are not relevant when making an objective assessment through the eyes of a reasonable person. Such considerations, instead, may be relevant when considering a damage award.

Public Debate and Opinions

The third key issue pertains to the trial judge’s application of the fair comment defense.

The fair comment defense safeguards freedom of expression under the Charter of Rights and Freedom by protecting public debate, even if it becomes derogatory or offensive. Note, however, that this defense applies only to important matters of public interest (not what Kate Middleton is having for lunch).

The important, public nature of Dr. Ball’s article topic, that being climate change, was not in dispute. Rather, the BCCA took issue with the trial judge’s application of the defense because the fair comment defense is just that: a defense. Instead of first deciding whether Dr. Ball’s article is defamatory, and then deciding whether the fair comment defense protects it, the trial judge blurred the two questions together by using elements of the fair comment defense while considering whether the article is defamatory.

One element of the defense is that the impugned statement(s) must be recognizable as an opinion. The trial judge gave substantial weight to this element as he found Dr. Ball’s article to be “clearly an opinion piece.” However, the BCCA pointed out that Dr. Ball’s article does not contain ordinary opinions: the author’s name is Dr. Tim Ball, and the article suggests the doctor’s knowledge of highly-technical matters in his area of expertise, such as the “Milankovitch Effect” and “Intergovernmental Panel on Climate Change computer models.” An ordinary reader likely would give extra credence to Dr. Ball’s article based on these factors. Dr. Ball’s article was thus not recognizable to ordinary readers as being an opinion.

The Website Venue

One unusual aspect of this case that was not examined by either court pertains to the website in which Dr. Ball’s article was published.

Dr. Ball’s article was first published on canadafreepress.com which, ironically, promotes American nationalism and espouses American conspiracy theories, such as 9/11 being an inside job, and former President Obama being an Islamic terrorist.

This unusual aspect of the case became moot because the article was subsequently republished on various other websites. However, if it had not been republished, the website venue may have been a factor in the courts’ defamation analysis. After all, if Dr. Ball’s article was published solely on such a website, would any ordinary member of the public have even read the article to begin with, much less given it credence?

Closing Thoughts

The Saskatchewan Court of Queen’s Bench recently encapsulated the theme of this two-part blog post in Houseman v. Harrison, when it stated

It is a sign of the times that Canadian courts have seen an increasing number of defamation actions pertaining to uncomplimentary and damaging words posted online. This medium is widely accessible and broadens the ability of anyone to publish harmful comments.

Now that our lives are increasingly moving online, especially due to recent events, it’s more important than ever to watch what you publish, even if it’s just on a questionable website, or in a post for your Facebook friends. You might think it’s just your harmless opinion, and a trial judge might even agree with you. But as evidenced in Weaver v. Ball, it might still be considered defamation in the end.