As I have written about earlier, the Protection of Public Participation Act (the “PPPA”) is aimed at combating strategy lawsuits against public participation (“SLAPPs”) and to guard against the vulnerability of the legal system to SLAPPs being used to censor public opinion, intimidate people and silence critics. I have previously written about the practical application of the PPPA in Lyncaster v Metro Vancouver Kink Society, 2019 BCSC 2207 (CanLII).
The recent decision of Peterson v Deck, 2021 BCSC 1670 (CanLII) provides further insight on the practical application of the PPPA to a more common source of defamation actions: online complaints.
In Peterson, the plaintiff was a plastic surgeon who had performed a breast augmentation surgery for the defendant. The defendant, unhappy with her results, posted several negative reviews on her personal website and through Google Reviews. The plaintiff noticed these reviews and asked that they be taken down and the defendant refused. The plaintiff commenced a defamation action and the defendant defended, in part, by relying on the PPPA.
The defendant’s complaints focused on alleged lack of professionalism in the plaintiff and his office’s dealings with her, failure to provide adequate consultation, surgical outcomes falling below ordinary standards and what was represented as could be expected and encouraging the public to not make use of the plaintiff’s services.
In her defense, the defendant invoked s. 4 of the PPPA, which the Court noted:
“….creates a pre-trial procedure that allows a defendant to apply to the court for an order dismissing a claim arising out of an expression of public interest.” The Court further noted that the stated intention in enacting the PPPA “…was to protect public participation in debates of the issues of the day and prevent strategic lawsuits brought by the wealthy and powerful to shut down public criticism…”
The Court engaged in a similar analysis to that employed in Lyncaster v Metro Vancouver Kink Society. In Peterson, the tasks the Court set itself to where to:
- first, determine whether the defendant satisfied the court that her statements related to a matter of public interest. If not, the PPPA defence was not made out;
- if the first stage was satisfied, the Court would then decide whether the defamation claim and defence relied upon had any merit; and
- as its last step, the Court would balance whether the public interest was weighed in favour of the expressions of the defendant or the prejudice that might be suffered by the plaintiff.
The Court did note that the intention of the PPPA was to potentially bring resolve to defamation claims early rather than when both parties had put the merits of their cases to trial, as was the case before the Court.
The Court found that whether a matter is in the public interest was a concept that deserved liberal interpretation. Having so found, the Court found that a consumer review of a plastic surgeon’s skills was within the ambit of what was a public interest. More generally, the Court also found that that consumer protection has always been the subject of protection of the public interest in defamation cases. The Court found that a defined segment of society would have a genuine interest in receiving information about a surgical procedure they were considering and, as such, the first stage was met.
The Court found that the defamation claim had substantial merit whereas the ordinary defences to defamation did not. As a result, the Court found that the defendant’s PPPA defence failed on the second stage. The Court also found that, while it was alive to the concern of the chilling effect judicial scrutiny of online reviews may have, online platforms were not a carte blanche to say whatever a person may wish without consequence. The Court weighed the impugned statements and found the prejudice that might be suffered by the plaintiff outweighed the public interest in the protection of the defendant’s statements and, as such, the PPPA defence also failed on the third stage.
More generally, the Court provided a thorough review of general defamation principles starting first with the legal framework of defamation which required the plaintiff to prima facie prove that the impugned words:
- are defamatory in the sense that they are capable of lowering the plaintiff’s reputation in the eyes of a reasonable person;
- refer to the plaintiff; and
- were published to at least one person.
The Court reiterated that whether words might be found to be defamatory can be based on their literal meaning, their meaning as revealed by context or the inferred meaning or impression. It went on to find that:
“The court may take into consideration all of the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published, and the manner in which they were presented…”
The Court had little difficulty finding the impugned statements were defamatory. It found that “Professionals may be defamed by comments that question or impugn their qualifications, knowledge, skill, capacity, judgment, or efficiency. Comments suggesting that a medical practitioner is incompetent, unqualified, or guilty of discreditable conduct in his or her profession are defamatory…” It also found that there were several defamatory meanings to be drawn from or contained within the defendant’s impugned words.
The Court had little difficulty finding that the defendant’s words referred to the plaintiff; she referred to him by name and vocation. The Court was also able to readily infer the defendant’s posts had been read, even in the absence of proof given the method of publication and other surrounding circumstances.
The Court noted that justification or truth is a defence to defamation claim. The impudent words, however, were peppered with opinion that could not fall within the ambit of matters which are objectively true in fact or not. There were also statements of fact which the Court found were false statements. As a result, many aspects of the defendant’s statements were found to be outside the defence of truth.
The Court also noted that fair comment is defence to a defamation claim noting that “It does not cover defamatory statements of fact that are untrue. A fair comment defence cannot, as a matter of law, expunge the unjustified defamatory statements of fact noted above. It may, however, preclude liability for some of the defendant’s prima facie defamatory opinions.” The Court further noticed the onus is on a defendant to establish the defence of fair comment.
The Court noted that:
“The publication of negative and unflattering remarks about a plaintiff, if honestly held, based on fact, not actuated by malice, and in respect of matters of public interest, are considered fair comment and not actionable…” and that “…the facts must be sufficiently stated or otherwise known to the reader, so that the reader is able to make up his or her own mind on the merits of the comment. The comment must be presented as an expression of subjective opinion, not an assertion of objective fact…”
While the defendant did present a number of facts leading to her opinion, the opinion she presented to the public was predicated, at least in part, on false facts and misrepresenting or omitting critical facts which would help a reader evaluate and form their own opinion on the plaintiff and his conduct.
In the result, the Court found that defamation had been made out and that all of the impugned statements were not defensible under the PPPA or at law. The Court went on to find that damages had to be assessed based on the following objectives:
- to act as a consolation to the plaintiff for the distress suffered as a result of the defamation;
- to repair the damage to the plaintiff’s reputation; and
- to vindicate the plaintiff or his business reputation.
The Court awarded general damages of $30,000 and made an injunctive order that the defendant remove her defamatory posts and not re-post them.
Peterson v Deck is a reminder that online reviews can and do attract significant damages. The PPPA does not provide protection for any critical review that may have some component of public interest. An opinion intertwined with incorrect and misrepresented fact is not protected from potential defamation claims. That said, a person should not be discouraged from sharing a review so long as it is grounded in fact.