Ontario appeal court rejects anti-SLAPP defence in defamation lawsuit

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Ontario’s Court of Appeal has allowed a defamation suit to proceed against an abortion access activist, in a decision that sketches the limits of anti-SLAPP motions, a law that is meant to protect free speech against lawsuits that aim simply to overwhelm in time and expense.

The court said things might have gone differently for the activist Brooke Dietrich if she had only allegedly defamed the anti-abortion group 40 Days For Life as liars, fear-mongers and harassers of vulnerable women.

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But she also made a series of TikTok videos that encouraged like-minded people to falsely sign up on 40 Days’ website to attend vigils, and to load up purchases in its online store without paying to disrupt its business. She also posted contact information for two of the group’s employees, including one man’s phone number and apparent encouragement to “give Steve a call… TikTok, please do your thing.”

Ontario’s law about “Strategic Lawsuits Against Public Participation” allows defamation cases to be tossed early in the proceedings if they seem to be an effort to deter the target from expressing an opinion on public affairs, rather than to pursue a plausible libel claim. A massive disparity in resources — such as between a young activist and a well funded foreign advocacy group — is often cited as a sign of a SLAPP. In its ruling, the appeal court says this might be an “indicium of an abusive proceeding,” but not necessarily.

What Dietrich said in the 14 TikTok videos at issue “was not limited to her views on abortion and on 40 Days’ activities and strategies. Several of her videos encouraged others to interfere with 40 Days’ activities and vigils. This is qualitatively different from counter-speech,” reads the unanimous ruling issued Aug. 2 by justices Bradley Miller, Alison Harvison Young and Lise G. Favreau.

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The appeal court endorsed the view of the trial judge who dismissed the anti-SLAPP motion in the first place: “While Ms. Dietrich’s motivation for expressing herself through the impugned TikTok videos may have started out as being part of the debate on whether anti-abortion protesting should be permitted near hospitals providing abortion services, some of her efforts appear to have subsequently become more focused on actively disrupting and impeding 40 Days in its anti-abortion activities. I do not find that there is significant public interest in protecting that kind of expression.”

Since being introduced in Ontario in 2015 (and five years later in British Columbia, the only other province to do so), anti-SLAPP motions have become wildly popular in the world of libel law, so much that they threaten to seem like “Get Out Of Libel Free” cards.

A review by the Centre for Free Expression at Toronto Metropolitan University said the nearly identical Ontario and B.C. laws are the strongest in the world, so powerful against plaintiffs that it’s often more promising to sue in another province if possible.

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They don’t always succeed at first hearing, so appeals of failed anti-SLAPP motions are turning up at Ontario’s top court at a rate of once every few weeks. “This is yet another anti-SLAPP appeal,” wrote Justice Sarah E. Pepall last year, when the same court upheld the dismissal of a different anti-SLAPP motion.

So, despite guidance from the Supreme Court of Canada about whether and how frivolous libel lawsuits can chill free speech, judges are getting increasingly tetchy about the idea that you can’t defame someone if you’re talking about an issue of broad public importance. Indeed you can, and sometimes claims like that rightly go to trial, even if there is a David and Goliath-style disparity in resources.

That looks like what’s about to happen in the case of 40 Days For Life v. Dietrich.

In the fall of 2021, when it began, Dietrich was a recent university graduate with a Master’s degree in social justice and community engagement, and a history of social justice advocacy.

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40 Days For Life is a Texas-based non-profit anti-abortion advocacy group with nine locations in Ontario, and it runs twice annual prayer vigils outside hospitals that provide abortions. It takes its name from the time Jesus spent in the desert before starting his ministry according to the three synoptic gospels, also the duration of Lent.

Dietrich saw one of these protests in Kitchener, Ont., and might have got away with her activism free and clear except that, as the appeal decision describes, she “inadvertently revealed her name in one of her videos,” which allowed 40 Days to identify her and start litigation.

40 Days got an injunction that ordered Dietrich to stop her online protest activity, but this was later quashed. Along with her anti-SLAPP motion seeking to dismiss the case, Dietrich also sought damages for “severe anxiety.”

Now, the failure of her appeal at Ontario’s highest court helps clarify the limits of anti-SLAPP law.

“In essence, she asks this court to consider the motion afresh. That is not the role of this court,” the appeal decision says.

The Canadian Civil Liberties Association intervened in the appeal of the injunction, and also in the anti-SLAPP case, comparing Dietrich’s TikTok campaign to other protected forms of expression such as consumer boycotts and pickets.

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The CCLA said in a news release that it “focused its arguments on the nature of protest in online spaces and the need for tort law to evolve in a manner that does not unduly restrict freedom of expression.”

“Posting statements or video recordings on a topic online and encouraging others to take action on an issue of public importance, serve the same democratic goals, and must attract the same protection, as standing in the public square or the speakers’ corner with a megaphone,” the CCLA said in its factum.

But the appeal court found the CCLA’s arguments “addressed a factual matrix very different from the one developed in the record before the court. Its submissions were accordingly not useful in deciding this appeal.” The CCLA declined an invitation to comment.

As the winner on the appeal, 40 Days for Life also got an order for $10,000 in legal costs from Dietrich.

Barring an unlikely appeal with leave to the Supreme Court of Canada, or a settlement, the case against Dietrich can now proceed to trial.

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