Congratulations to Don Staniford – and his lawyer, David Sutherland – who, last month, defeated a lawsuit brought against him by fish farm giant, Mainstream Canada! The fish farm company had sued Don for a series of mock cigarette ads with warnings related to the impacts of fish farms.
In many ways West Coast Environmental Law and fish farm activist Don Staniford sit at opposite ends of the spectrum of environmental activism. We depend upon well researched legal positions to advance environmental protection, while Don focuses on an appeal to the emotions, with the factual basis sometimes being less obvious. We would not have endorsed, for example, Don’s mock cigarette ads, which accuse Norwegian fish farming, of among other things, “killing workers” and being “like the black death plague.”
However, we believe in free speech, and in the ability of activists to speak their mind without being sued for it. Public discourse takes all types, and, we were there for Don when he was sued – through a grant from our Environmental Dispute Resolution Fund (EDRF). As well, we hoped that the case would help to clarify how defamation law applies to colourful statements by environmental activists – so that those behind future environmental campaigns can breathe a bit easier. In this spirit, we offer the following lessons learned from Don’s judgment.
Your conduct during the trial matters
Don has (understandably) been publicly claiming a victory, but it’s worth noting that the court did not consider him blameless. The court found that Don’s cigarette ads had defamed Mainstream Canada:
Mr. Staniford’s words are defamatory, in the sense that they would tend to lower Mainstream’s reputation in the eyes of a reasonable person; the words in fact referred to Mainstream; and the words were communicated to at least one person other than Mainstream.
But it’s also pretty clear that Don’s conduct during the trial did not impress the judge. While Adair J. seems to have made every effort to keep an open mind in respect of Don’s case, her judgment does spend a significant amount of time discussing Don’s conduct – both in the courtroom and on the GAAIA blog – often in less than flattering terms. This conduct included some behaviour that few would defend – such as publishing insulting comments about the physical appearance of female witnesses.
Activists who find themselves in court – whether because they’re sued or for other reasons – need to know that there are certain expectations, including communicating respectfully to the judge, the lawyers, witnesses and other participants.
There is nothing wrong with updating supporters with the progress of a court case via a blog or the media, but you’d better be sure to be accurate and respectful, or you may (as Don did) find your blog post quoted in the judgment.
Some activists – due to their style or personal beliefs – find no difficulty with the conventions of court. Others find it more difficult to strike a balance between making their views and perspectives heard, and observing a level of decorum that the judge expects. However, at the end of the day, activists would be well advised to be aware of the expectations of the judge, who will be deciding the case.
Be clear in the scope of your campaign
Don’s cigarette packages never referred to Mainstream Canada by name, and Don’s lawyer argued, unsuccessfully, that the packages referred to the Norwegian fish farming industry globally, and not to Mainstream Canada in particular. A significant portion of the judgment examines whether Don was actually talking about Norwegian fish farm companies in British Columbia (where Mainstream Canada, owned by the Norwegian company, Cermaq) is a major player) or globally (where Mainstream Canada would be a minor player).
The judge concluded that the campaign was focused on BC, and therefore that the cigarette ads could be understood as referring to Mainstream.
In our view, this portion of the judgment is not entirely satisfactory, in that Adair J. glosses over parts of the GAAIA website that do not support the view that the campaign was BC focused, instead focusing on a number of blog posts and other portions that do. For example, the January 31, 2011 press release launching the cigarette package campaign directly quotes Juan Carlos Cardenas, Director of Ecoceanos in Chile, as providing a basis for several of the claims about fish farming, including the controversial claim that fish farming kills workers:
By draining our Southeast Pacific oceans of wild fish for feed, Norwegian-owned farmers are robbing Pedro to pay John and stealing fish out of the mouths of Latin Americans. … This lethal industry has been responsible for the deaths of divers and sixty four workers as well as hundreds of sea lions and other marine birds and animals. The practices of Norwegian companies operating here and in Chile provoked the most important sanitary, environmental and social crisis in the south Chilean coastal regions where 20,000 jobs have been destroyed in the last three years. The industry has blood on their hands and ought to hang their heads in shame.
Similarly, Don's claims that “Norwegian Fish farming kills lobsters” (when BC has no lobsters) or “Fish farming kills around the world” are clearly not part of a BC-focused campaign.
The reality is probably that Don, as a campaigner, was engaged at both a BC and a global level. It is not an either-or situation. Many of his most defamatory statements seem to have been based upon the international performance of the industry, but some readers may have been confused about this when he used the GAAIA website to tackle BC-specific operators.
Activists need to be careful, particularly when making emotionally charged statements, to make the factual basis for their opinions clear. It is important not to allow subsequent communications to create confusion as to the basis for earlier statements.
The defence of fair comment
At the end of the day, Don won not because the judge agreed with his statements about Mainstream Canada -- quite the contrary.
Don won because the Supreme Court of Canada has recently expanded the “defence of fair comment” in a case known as WIC Radio Ltd. v. Simpson. That case was a defamation suit against BC’s own Rafe Mair for comments that he made comparing a speech made by Kari Simpson on homosexuality to speeches made by Hitler and U.S. segregation era politicians. The Supreme Court of Canada allowed Rafe’s appeal, and in doing so, said that individuals who express honestly held opinions – as long as they are clearly opinions and not claims of fact – cannot be found guilty of defamation. The Supreme Court says that the defence applies where:
(a) the comment must be on a matter of public interest;
(b) the comment must be based on fact;
(c) the comment, though it can include inferences of fact, must be recognisable as comment;
(d) the comment must satisfy the following objective test: could any [person] honestly express that opinion on the proved facts?
(e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was [subjectively] actuated by express malice.
Don’s case is the first defamation case that we’re aware of involving defamation by an environmental activist since the Supreme Court’s decision in WIC Radio, and Adair J. found that Don’s cigarette packages satisfied all of these criteria. In doing so, she made a couple of findings which will protect environmentalists and others seeking to comment on high profile public issues.
First, the Judge applied an English case, British Chiropractic Association v. Singh, in support of the view that the “courts – and defamation actions in particular – should not be used to settle or attempt to settle scientific controversies.” On the basis of this case the court found that Don’s assertions related to the toxicity of farmed are his opinions (rather than fact) that could be honestly expressed based on the scientific literature. Since corporate plaintiffs will often be able to muster the best experts, this approach may be helpful in many cases where critics of mainstream industrial practices are sued. That being said, while it may help environmentalists in some cases, this defence might also be advanced by climate change deniers sued (for example) for defaming climate scientists (although perhaps not – since Adair J. seems to suggest that this criteria where the science is settled, as, for example, is the case in relation to the risks of tobacco).
Second, while the Judge found that Don did have malice towards Mainstream Canada, she concluded that this malice was not Don’s “dominant purpose” in making the defamatory statements.
… I am unable to conclude that [Malice against Mainstream Canada] was Mr. Staniford’s dominant purpose in publishing the statements in issue. Mr. Staniford’s main goal is to end industrial aquaculture, and he seeks (albeit in clumsy, crude, irrational or foolish ways) to influence public opinion to that end. That (currently) is his life’s work. His commitment to that cause is illustrated by his self-published magnum opus – “Smoke on the Water, Cancer on the Coast.” I find that Mr. Staniford’s statements and publications are related primarily to that purpose. As Tysoe J.A. observed in Creative Salmon …, the protection of a person’s ability to exercise his or her right to freedom of expression in order to attempt to influence public opinion on legitimate public issues is the objective of the defence of fair comment. The defence cannot be defeated if Mr. Staniford was doing the very thing that the defence was designed to protect.
This seems to me to be an important finding. Environmental activists generally act out of what they perceive is best for their community or the environment, but it is not uncommon for an activist to develop a dislike towards the companies or individuals that they see as contributing to environmental destruction. In past defamation cases against environmentalists, the courts have sometimes held that individual activists made their statements out of malice, failing to recognize that their broader goal was opposition to a particular project or development.
Mainstream Canada v. Staniford should give environmentalists some comfort that they won’t be held liable for any controversial statement made about corporations. The decision also suggests a number of lessons for environmentalists and others speaking out.
However, while the decision is a win for free speech, and for Don, the decision does nothing to address the broader problem of allowing large corporations with extremely deep pockets to drag their political opponents into court. The costs of going to court (and defamation cases are particularly expensive) are prohibitive for activists, but are a tax deductible expense for big companies. The result is an unequal playing field where those who speak out against environmental destruction risk being sued by deep-pocketed opponents.
Don has been lucky, in that he had access to an experienced defamation lawyer and is an accomplished fundraiser. And he won. But even so, the costs award that he will receive from Mainstream Canada will not cover his legal bills, and will not replace the months of his time and attention that the case has taken.
David Sutherland, Don’s lawyer, has suggested that BC follow Australia’s example of banning corporate lawsuits in defamation. Others have suggested that BC needs legislation to protect people against Strategic Lawsuit Against Public Participation (SLAPPs) (Don characterized this lawsuit as a SLAPP). What do you think? How should we protect ordinary citizens against being sued when they speak out against large companies? Does the law currently strike the right balance?
By Andrew Gage, Staff Lawyer
Graphic from GAAIA.org.