Defamation in the Twitterverse: Levant v Day
It is by the goodness of God that in our country we have those three unspeakably precious things: freedom of speech, freedom of conscience, and the prudence never to practice either of them.
– Mark Twain, Following the Equator
What does harm to the reputation of a polarizing public figure entail? What is the evidentiary standard for proof of such harm? If determined to be significant, is this harm enough to render one person’s freedom of expression illegal under defamation law? The questions surrounding reputational harm reveal a particular tension present in defamation law. On the one hand, there is a sense that an individual’s reputation ought to be protected from false allegations. On the other, freedom of expression is fundamental to the flourishing of ideas, and comments that are offensive and off-colour should not compromise this central tenet of Canadian society.
Anti-SLAPP (Strategic Litigation Against Public Participation) provisions were created to prevent defamation litigation from silencing discourse on matters of public interest. In Levant v Day, 2019 ONCA 244 [Levant ONCA], however, demonstrates how anti-SLAPP provisions are subject to a balancing analysis that makes them a less than ideal tool for upholding freedom of expression as it relates to defamation law.
Between May and early June 2016, Robert Day, the appellant, issued a series of tweets aimed at Ezra Levant. A self-described left-wing liberal, Mr. Day’s social media commentary is no stranger to profanity or provocation (Levant v Day, 2017 ONSC 5956 at para 7) [Levant ONSC]. Mr. Levant is a right-wing media commentator, founder of Rebel Media, and no stranger to defamation actions. The subject of the tweets was a fundraising campaign by Rebel News for victims of the Fort McMurray fires.
Specifically, the tweets alleged that Mr. Levant was himself profiting from the donations. Some of the tweets were critical in tone: “I think I see the scam… Ezra will take a tax write-off based on giving out things of ‘value’. What a con” (Levant ONSC at para 11). Others were profane: “By the way, here’s two ways Ezra completely fucked all those Indigogo donors up the ass” (Levant ONSC at para 17). In other tweets, Mr. Day characterized Mr. Levant as “a sleazy opportunist, hack, con artist and grifter” (Levant ONSC at para 20). At the time, Mr. Day had over 11,000 followers on Twitter. In response to the tweets, Mr. Levant brought a defamation action against Mr. Day under the Libel and Slander Act, RSO 1990, c. L. 12 [the “Act”].
Late in the proceedings, Mr. Day moved to dismiss the action under section 137.1(3) of the Courts of Justice Act, RSO 1990, C.43 [CJA]. Under this anti-SLAPP provision, the court may make a preliminary assessment of the merits of the defamation claim. The purpose of this provision is to protect individuals engaging in important public debate, as well as to discourage the use of defamation litigation to limit public discourse. Under a section 137.1(3) motion, a defendant (Mr. Day) may move to dismiss a defamation suit when it can be established that the expression in question deals with a matter of public interest [CJA s. 137.1(3)]. Once the public interest is established, the plaintiff (Mr. Levant) must prove that the action has substantial merit, that the defendant has no valid defence, and that the harm that the plaintiff has suffered or is likely to suffer is “sufficiently serious” to outweigh the public’s interest in protecting the impugned expression (Levant ONSC at para 2).
The Ontario Superior Court of Justice held that the impugned expression did not relate to a matter of public interest and that the tweets were instead “thinly veiled attacks on Mr. Levant” (Levant ONSC at para 24). In the event that this finding was incorrect, the motion judge proceeded to the next stage of the test.
First, Justice Brown held that the claim has substantial merit since the tweets were directed at Mr. Levant, were published to be publicly read, and were intended to harm Mr. Levant’s reputation (Levant ONSC at paras 27-33).
Second, the motion judge found that the Mr. Day had no valid defences. The defence of fair comment was not available since Mr. Day had portrayed his tweets as facts rather than comments, and he continued even after he was informed of their inaccuracy (Levant ONSC at para 40). The defence of no notice under section 5(1) of the Act was also unavailable since the motion judge held that the tweets are not necessarily subject to the Act.
Third, the motion judge held that the real or potential harm to Mr. Levant was sufficiently serious to outweigh the public interest underlying section 137.1(3) motions under the CJA. Mr. Levant argued that there was in fact a greater public interest in protecting the reputation of those raising funds for causes from a “relentless and baseless attack […] which [would] also have the effect of chilling charitable fundraising campaigns” (Levant ONSC at para 52). The motion judge accepted that the reputational harm outweighed the public interest since Mr. Day’s tweets were directed at Mr. Levant and were presented as facts rather than comments.
Having found that Mr. Day’s tweets did not engage a matter of public interest, and in the alternative, did not meet test under section 137.1(3) of the CJA if they did deal with a public interest, the motion judge refused the motion and ordered that the defamation claim proceed to trial.
The Court of Appeal
Mr. Day appealed the motion judge’s decision not to dismiss the action in accordance with the anti-SLAPP provisions of the CJA on the basis that the judge erred in three conclusions:
- The appellant’s tweets did not relate to a matter of public interest.
- The defence of fair comment was not available to the appellant and that the notice provisions of the [Act] are inapplicable to Internet publications.
- The public interest in allowing the proceeding to continue outweighed the public interest in protecting the appellant’s expression. (Levant ONCA at para 1)
In addition to appealing the costs order issued against him, Mr. Day contended that since the expression did indeed relate to a matter of public interest, and since Mr. Levant had failed to provide evidence of any harm to his reputation, the action should have been dismissed. The Court of Appeal dismissed the appeal.
Writing for the court, Justice Pardu first revisited the purpose of the anti-SLAPP provisions in the CJA. The concern underlying these provisions is that defamation actions will discourage individuals from engaging in discourse on matters of public interest. The provisions, therefore, serve to “promote broad participation in debates” and “discourage the use of litigation as a means of unduly limiting expression on matters of public interest” (Levant ONCA at para 8). Additionally, the provisions attempt to counteract or reduce any chilling effect on expression created by the threat of a defamation suit.
Justice Pardu noted that the ONCA’s ruling in 1704604 Ontario Ltd. v Pointes Protection Association, 2018 ONCA 685 [Pointes] had not been released when Levant ONSC was decided. While the motion judge determined that Mr. Day’s tweets were best characterized as personal attacks as opposed to comments on a matter of public interest, Pointes adopts a broad definition of the anti-SLAPP’s public interest requirement. In Levant ONCA, the Court provides further clarification on the concept of public interest: “An expression may relate to more than one matter. If one of those matters is a ‘matter of public interest’, the defendant will have met its onus” (Levant ONCA at para 10, quoting Pointes at para 65).
Given this clarification, the motion judge’s focus on the merits of the allegation, the nature of the expression itself, and Mr. Day’s motives were an error of law. Mr. Day’s motive is distinct from the subject matter of the tweets, and should have been considered separately. When the tweets are examined for their subject alone, the Court held that they do indeed relate to a matter of public interest. Whether or not the fundraising campaign run by Rebel Media and Mr. Levant was legitimate, and whether the funds raised were making their way to the citizens affected by the Fort McMurray fires was a matter of public interest. While the analysis would normally stop with this finding, the Court continued to cover all the grounds of appeal.
The Court proceeded to consider whether Mr. Day could produce any valid defences, which the motion judge was satisfied he could not. Drawing again from the Court’s recent ruling in Pointes, Justice Pardu noted at this stage a motion judge must decide “whether a conclusion that the defendant has no valid defence falls within ‘the range of conclusions reasonably available on the motion record’” (Levant ONCA at para 14). This means that there are a myriad of ways the trier of fact might conclude that there is no valid defence to the action. If such a conclusion is reasonable, the analysis proceeds to the next and final stage. Here the motion judge had several options: she could have held that s. 5(1) of the Act did not apply to Twitter, or that the impugned expression did not satisfy the defence of fair comment. No errors were made, therefore, at this stage.
In the final stage of analysis, the Court turned to the balancing that must be performed between the reputational harm suffered or likely to be suffered on one hand, and the public interest in protecting the impugned expression. As the Court noted in Pointes, insignificant reputational harm does not outweigh the importance of protecting freedom of expression as it relates to matters of public interest (Levant ONCA at para 17). Here the Court held that “the statements attribute serious criminality to the respondent” (Levant ONCA at para 19). This suggestion amounted to serious reputational harm. While Mr. Day argued that Mr. Levant’s reputation and work with Rebel Media has already resulted in a bad reputation, the Court held that a bad reputation (though it made no finding on this question) was distinct from “a reputation tainted with criminal conduct depriving innocent victims of charitable donations” (Levant ONCA at para 19). The Court is clear to note that the vulgar nature of the tweets themselves do not cause harm. Instead, deliberately peddling falsehoods over a sustained period of time tips the balance in favour of the harm to Mr. Levant outweighing the public’s interest in protecting Mr. Day’s tweets.
While proportionality has become a core component of most rights adjudication, this case demonstrates what we may lose when we resort to balancing: principled rights protection. Far from rigorous, the proportionality analysis here hinges on judicial discretion. Another panel may have found that Mr. Day’s tweets engaged in a matter of public interest and this expression outweighed the harm to Mr. Levant’s reputation. Yet another panel may have held that the harm to Mr. Levant’s reputation would have been insignificant but for the publicity the tweets gained through the defamation litigation itself. Throughout the ruling, the motion judge seemed particularly concerned with the fact that this motion to dismiss was brought late in the proceedings (Levant ONSC at paras 4–5). As a result, the motion judge appeared to have been receptive to Mr. Levant’s argument that Mr. Day was engaged in a stalling technique.
How Twitter fits into defamation law must be clarified further. What we see in Levant are two sides taking their Twitter battle offline and into the justice system where courts must sift between equally unappealing positions to strike a balance between freedom of expression and protection of reputation. The underlying question is how defamation law should evolve to better respond to an age of public discourse through ‘280-characters or less’ communication. The Law Commission of Ontario has embarked on a project entitled “Defamation Law in the Internet Age” which seeks to provide recommendations for updates to defamation law in light of internet communications. Like it or not, public discourse is now dominated by social media and an update to defamation law is long overdue.