In my earlier article, Defamation, the Protection of Public Participation Act and Strategic Lawsuits Against Public Participation, I wrote about the Protection of Public Participation Act (the “PPPA”), a piece of legislation aimed at combating strategy lawsuits against public participation (“SLAPPs”). And, in particular, about the stated intention of the PPPA to guard against the vulnerability in the legal system of SLAPPs being used to censor public opinion, intimidate people and silence critics.
Since my initial article, cases continue to be published which explore the practical application of the PPPA including Lyncaster v Metro Vancouver Kink Society, 2019 BCSC 2207 (CanLII) (“Lyncaster”).
In Lyncaster the Plaintiff was a member of the BDSM or kink community in the lower mainland. The Defendants were a society dedicated to educating and advocating for members of the kink community and several of its Directors. The complaint of the Plaintiff centered on a letter and statements made by the Defendants which variously stated that the Plaintiff invited a minor to his home to discuss BDSM, that he engaged in potentially predatory sexual behaviour and engaged in BDSM practices without consent.
The Defendants applied further to s. 4 of the PPPA seeking a dismissal of the Plaintiff’s claim on the basis that their comments were protected under the PPPA. As the Court framed things, there were two stages of analysis engaged as a result:
- the Defendants were required to satisfy the Court that their statements related to a matter of public interest. If the Defendants failed to do so, their application to dismiss the claim would be denied; and
- if the Defendant satisfied the first stage, the onus would shift to the Plaintiff to satisfy the Court that there are grounds to believe that his claim had substantial merit and there was no defence to same. This required the Plaintiff to also show that there is public interest in allowing the claim to continue by demonstrating that the harm potentially suffered by him if his claim did not proceed outweighed the public interest in promoting the value of freedom of expression.
Citing several other decisions, the Court in Lyncaster set out the following principles applying to the consideration of whether a matter is of public interest:
- A matter of public interest must be distinguished from a matter about which the public is merely curious or has a prurient interest.
- The phrase “public interest” must be given a broad, although not unlimited, interpretation.
- The public interest is to be determined objectively, having regard to the context in which the expression was made and the entirety of the relevant communication.
- An expression can relate to a matter of public interest without engaging the interest of the entire community, or even a substantial part of the community. It is enough that some segment of the community would have a genuine interest in the subject matter of the expression.
- The characterization of the expression as a matter of public interest will usually be made by reference to the circumstances as they existed when the expression was made.
- Neither the merits of an expression, nor the motive of the author in making it, should be taken into account in determining whether an expression relates to a matter of public interest.
- To be of public interest, the subject matter must be shown to be one inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or to which considerable notoriety or controversy has attached.
Applying these principles, the Court found that the Defendants’ statements in Lyncaster concerned matters of public interest. As a result, the Court moved on to whether the Plaintiff satisfied the merits-based second stage of the analysis.
The Court summarized its task as follows: the Plaintiff was required to prove “…on a balance of probabilities, that there are reasonable grounds to believe that his defamation claims are legally tenable and supported by evidence, which could cause a reasonable trier of fact to conclude that his claims have a real chance of success.” The Court found that the words complained of met the test of being defamatory such that the claim had substantial merit. The defamatory words were published in a potentially public way meaning that they may have reached a very large audience. The defamatory words included thinly veiled allegations of sexual criminal misconduct. The conclusion being that the Plaintiff met the onus of proving a reasonable judge could conclude the claim for defamation should succeed.
Lastly, the Court engaged in a balancing of the public interesting in continuing the proceeding vs. protecting the Defendants’ statements. The Court held that the Plaintiff could establish evidence of harm suffered by the defamatory statements through incomplete evidence and common sense reading of the claim. On this relatively low threshold, the Court found that the Plaintiff had satisfied his obligation to demonstrate that he may have suffered some financial, physical, psychological and social harm. The Court also noted that the circumstances were not the type of circumstances the PPPA is aimed at, which are generally instances of a more powerful and financially backed entity using its power and resources to shock and deter critics through use of SLAPPs.
In summary, the Court found that the Plaintiff demonstrated that the harm he likely suffered, in all the circumstances, was sufficiently serious that the public interest in permitting him to continue his defamation claim outweighed the public interest in protecting the Defendants’ words.
Lyncaster is a helpful case for both plaintiffs and defendants to defamation proceedings to understand the application of the PPPA to such proceedings and the onus and burden or proof on both parties at various stages of analyzing how the PPPA might be engaged by a defamation proceeding. It is important to clarify that the PPPA does not provide absolute protection to any defendants for their potentially defamatory conduct, but needs to be applied carefully and while considering a number of factors.