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Canadian Internet Defamation Rulings
This case is filed under Substantive Defences
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2020 April 30
Weaver v. Ball,  2020 BCCA 119

The British Columbia Court of Appeal, allowing the plaintiff Andrew Weaver’s appeal from a trial judgment dismissing his action against Dr. Tim Ball, held that the trial judge “erred in his approach in determining that the words in the [online article by the defendant] were not defamatory of Dr. Weaver.  Applying the classic test of whether the words have a tendency to injury the person’s reputation in the estimation of reasonable right-thinking persons, the words were defamatory.”

The Court of Appeal held that trial judge erred in his reasoning with respect to “ the following three key reasons for finding the test of defamation was not met:

1.       first, the article was poorly written and did not advance credible arguments, and the words lacked a sufficient air of credibility to make them believable to a reasonable person and was an opinion piece;

2.       second, Dr. Weaver did not consider his reputation to be genuinely threatened; and

3.       third, as a person who is at the forefront of a public debate, it could be expected that Dr. Weaver’s actions and word will be subject to robust scrutiny and criticism.|”

With respect to the quality of the online article by the defendant Dr. Tim Ball, the Court of Appeal noted that “the judge’s observations as to the Article lacking credibility listed a number of errors and inaccuracies in the Article.  But this was based on evidence that came out during the trial, not the content of the Article.

The judge’s comments that the words lack a sufficient air of credibility to make them believable “was based on the judge’s subjective understanding of the many flaws in the Article after hearing evidence as to the Article’s errors and inaccuracies.  These errors and inaccuracies are not apparent merely by reading the Article and cannot be said to be common knowledge.”  “The judge fell into error when determining the question of whether the Article was defamatory, by taking into account the poor quality of the writing of the Article in a subjective way based on evidence known to the Court but not to the ordinary and reasonable reader.

The Court of Appeal held, with respect to the second factor, that “it cannot be said  that Dr. Weaver’s reaction to the Article was proof it was not defamatory.”  “[E]ven if it could be said that the reaction of a person allegedly defamed may be some circumstantial evidence from which inferences could be drawn of how a reasonable person would interpret the statement, I question the reasonableness of the inferences that were drawn in this case.  It is not inconsistent with the fact of defamation for a person who is defamed to publicly refer to the words in some way, in an attempt to diminish the messenger or the message.”

With respect to the third factor (public debate), “the judge’s analysis erroneously blurred the lines between the question of whether statements are defamatory and the question of whether the fair comment defence applies.”  “On the facts of this case the opinion aspect of the Article was more relevant to the stage of analysis addressing the defence of fair comment and perhaps even damages.”  “The judge’s consideration of the public nature of the debate also blurred the lines between the fair comment defence and the issue of whether the statements are defamatory”.  “In this digital age, the public forum for the free exchange of ideas is more and more often electronic.   But many internet publications purport to report news and information without employing standards of professional journalism.  A false statement damaging a person’s reputation can spread widely and rapidly, instantly and often permanently available to anyone who uses an internet search engine.”    Allowing the appeal, the Court of Appeal remitted the matter to the trial court on the remaining issues, namely, publication, the applicability of the fair comment defence, and damages.