On 16 February 2021 Carter-Ruck client Al Jazeera Media Network won a motion to dismiss a defamation claim brought by the Rebel News Network ltd in Ontario. Rebel News, a right-wing news organisation, sued over allegations broadcast by Al Jazeera on its “Listening Post” programme in September 2019.
The motion was brought under the “anti-SLAPP” legislation in Ontario under its Courts of Justice Act and was an application for an order dismissing the action as being a strategic lawsuit against public participation (“SLAPP”). That legislation is expressed to be for the purpose of encouraging individuals to express themselves on matters of public interest, to promote broad participation in debates on matters of public interest and to discourage the use of litigation as a means of unduly limiting expression on matters of public interest. SLAPPs are described as lawsuits initiated as an indirect tool to limit expression and to deter that party, or other potential interested parties, from participating in public affairs.
The legislation is relatively recent and has not been widely applied, but in a separate ruling the same Judge also dismissed a defamation action brought by Rebel News against an environmental journalist and campaigner Brendan DeMelle.
An anti-SLAPP motion tests the merits of the case and of the validity of any defence, but involves only a limited assessment of evidence. In both the Al Jazeera and DeMelle cases the court found the public interest in protecting the expression outweighed Rebel’s interests in pursuing the claim.
Rebel’s appeal against the decision was dismissed by the Court of Appeal for Ontario on 28 January 2022.
The application of anti-SLAPP legislation is not limited to defamation claims but can apply in other cases where the freedom of expression is at stake, and where the proceeding initiated against the defendant arises from an expression relating to a matter of public interest. For example, it has been used in Canada by Pointes Protection Association, a not-for -profit corporation, to dismiss an action for breach of contract initiated against them by a land developer, where Pointes had lodged an opposition to the development. A decision of the Supreme Court of Canada upheld the dismissal of the suit.
Similar legislation is in place in various forms in some US states, notably in California and New York, where its aim is to deter nuisance suits aimed at having a “chilling effect” on free speech and where anti-SLAPP laws protect the principles in the First Amendment. Some legislation imposes an additional burden on the applicant to demonstrate that the suit was brought in bad faith.
There are calls to introduce anti-SLAPP legislation in Europe, where campaigners point to multiple claims being initiated by powerful entities against individuals or organisations with the obvious purpose of intimidating or harassing the party sued. There is no anti-SLAPP legislation in England and Wales but there do exist different procedural tools to strike out vexatious or unmeritorious cases and there is a threshold “serious harm” test, requiring a claimant in a defamation action to demonstrate a likelihood of serious harm to reputation, or for a corporate claimant like Rebel News, a likelihood of serious financial loss, caused by the publication. The court in Canada in the Al Jazeera and DeMelle cases found that, in weighing the respective parties’ interests, Rebel had to show the existence of some harm caused by the expression, and concluded, in summary, that the harm to Rebel was not sufficiently serious to justify interference with the Defendants’ freedom of expression in the public interest. This is a similar balancing act that we would expect to see applied in the English courts, albeit not within an anti-SLAPP framework.
The decisions represent a significant development for publishers of matters in the public interest but it remains to be seen how the anti-SLAPP laws will develop, where in other cases the Canadian court has refused similar motions so as to ensure that a claimant with a legitimate claim is not unduly deprived of the opportunity to pursue it.
Claire Gill acted for Al Jazeera and instructed Philip Tunley of St. Lawrence Barristers in Toronto.
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