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Protection of Public Participation Act FAILS to Dismiss Defamation Claim

The Protection of Public Participation Act (“PPPA”) came into force in early 2019 in British Columbia which serves to enhance public participation in speaking out on important public issues. The Act protects the public from being sued in defamation for expressing their views on matters of public interest. These defamation lawsuits are known as strategic lawsuits against public participation (SLAPP lawsuits).

The PPPA provides for an quick and expedited process for defendants (who have been sued in defamation) to ask the court to dismiss the defamation claim if it hinders their ability to speak freely on matters of public interest. If successful, the defendants are compensated fully for their costs if the SLAPP lawsuit is dismissed.

As addressed in a previous blog post, there are two (2) main stages in an analysis for dismissing a defamation action pursuant to the PPPA. In the second stage, the plaintiff (who sued the defendant in defamation) must show that it is in the public interest to allow the defamation action to continue in that the potential harm suffered as a result of the defamation outweighs the public interest in promoting freedom of expression.

Lyncaster v. Metro Vancouver Kink Society 2019 BCSC 2207 involves a PPPA application brought by the defendants to dismiss a defamation claim made by the plaintiff.

The plaintiff is a long standing member of the “BDSM” or “kink” community. One of the defendants is a society whose purposes include educating and advocating for members of the Vancouver kink community. The plaintiff sued the defendants in defamation in respect of an Open Letter published by the defendants. The Open Letter stated that the defendants would not work with the plaintiff or recommend him because of past criminal behaviour including inviting a minor to attend his home for a BDSM related discussion and performing BDSM acts without consent.

The trial judge considered the meaning of “public interest” which is not defined in the PPPA and concluded that the following principles apply when considering 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.

The trial judge also noted that there is no exhaustive list of topics that can fall under the rubric of “public interest” and provides the following examples:

  • expressions concerning the suitability of a person to hold elected office;
  • the expenditure of public funds;
  • questionable business practices; legal rights;
  • scientific or environmental matters;
  • religion or morality; the arts;
  • and public health and safety. Whether an expression relates to a matter of public interest is, therefore, to be determined on a case-by-case basis.

The trial judge dismissed the PPPA action on the basis that the public interest did not outweigh the public interest in free speech:

[62] It should be remembered that not all expressions on matters of public interest serve the values underlying freedom of expression. In assessing the public interest favouring the defendants’ freedom of expression, a judge must assess the public interest in protecting the actual expression that is the subject of the lawsuit. The relevant expressions in this case concern the allegations criminal misconduct. In my view, there is reduced public interest in the publication of uncorroborated allegations of criminal misconduct to an excessively broad field. On the record before me, there appears to be a serious question of whether there is evidence corroborating the allegations made against Mr. Lyncaster. I am not satisfied that the public interest in ensuring the safety and health of members of the Vancouver kink community could not have been served by reporting the allegations of criminal misconduct to the police.

[63] In addition, the claim of Mr. Lyncaster does not have the hallmarks of the type of anti-SLAPP suit contemplated in the legislative debate. He first asked that MVKS withdraw the alleged defamatory statements and they refused. I do not conclude that this is a situation in which Mr. Lyncaster is attempting to use this litigation to stifle expression or silence his critics. There does not appear to be a power differential in favour of Mr. Lyncaster arising from a greater access to the financial resources required to advance his litigation. Arguably, with respect to the parties’ ability to fund this litigation, the power differential favours the defendants

If you have been sued for defamation for expressing your views on a matter of public interest, contact us for a free initial consultation to learn about your rights and whether the PPPA applies to dismiss the defamation claim against you.

Tags: 3P Application, Anti-SLAPP Application, defamation

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