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Defamation threats can damage democracy

St John Telegraph Journal by Hilary Young 3 October 2016

On Monday, NB Liquor Corporation threatened to sue this province’s Access to Information Commissioner in defamation. Commissioner Anne Bertrand had written a scathing report, criticising the way the Crown Corporation handled an access to information request. She said it considered itself “above the law”. Rather than engage in public debate, NB Liquor called its lawyers.

As a citizen and taxpayer with an interest in how NB Liquor operates, it concerns me that it would take this approach rather than actually address the Commissioner’s report in a public and cooperative way. As a defamation scholar, I’m concerned about the effect that even threats of litigation can have on people’s willingness to speak out on matters of public interest. It is this second point I’d like to discuss.

For our democracy to work, people have to be able to share information and speak out about a wide range of things. Through defamation law, the state makes it illegal to express certain allegations or criticisms. This is a powerful tool – one that must be carefully limited. The risk is greatest when the illegal speech is about matters of public interest.

That is why defamation law has a number of safeguards to help protect speech on matters of public interest. For example, there is a defense of Responsible Communication. It protects those who take reasonable steps to make sure what they say is true, even if it ends up not being true, so long as it is on a matter of public interest.

These protections only help, however, if there is an actual lawsuit. And it’s expensive and time-consuming to defend a lawsuit.

Yet the risks to democratic discourse are there even if there is no actual lawsuit. An activist speaks out against a pipeline. A reporter investigates a politician’s conflict of interest. A consumer writes a blog post about a defective product. A “cease and desist” letter from a lawyer may convince these people not to speak out or to retract or remove the criticism. This letter doesn’t set any legal mechanism in motion: it is simply a threat of future legal action.

Even if the activist’s, reporter’s or consumer’s comments are completely defensible, it’s much easier to retract than to fight in court. Even if the party threatening a lawsuit has no intention of actually suing, the threatened party doesn’t know that. Faced with the prospect of litigation, most people will understandably take the easy route: apologize, retract, stay silent.

And so, threats of defamation suits are used as a reputation management tool.

We are all worse off when this happens. We need people to speak freely (although responsibly) about matters of public interest.

The problem is a difficult one. Those who threaten baseless lawsuits never admit they know their suit is baseless or that their purpose is to silence criticism. So it is hard to say whether a “cease and desist” letter is an improper threat or a logical step in legitimate legal proceedings.

There are laws meant to shut down SLAPPs (strategic lawsuits against public participation) at an early stage. SLAPPs are lawsuits intended to silence or punish critical speech on matters of public interest. Ontario and Quebec have anti-SLAPP laws. MLA David Coon proposed such legislation for New Brunswick but it didn’t get past first reading. Regardless, these laws are no help if you are merely threatened with a lawsuit.

Part of the solution may lie in ensuring that lawyers act ethically, by not threatening legal action that they have no intention of pursuing or that would have no merit. Yet there will always be some who push the boundaries of ethical conduct.

At this stage, it is not possible to say whether NB Liquor’s claim that it has been defamed has any merit or whether the threat was meant as reputational damage control. Yet the information we have to date is troubling. The Commissioner’s report is clearly on a matter of public interest. I have yet to see any sign of bad faith or malice.

I doubt a trial will happen. One hopes that, in any event, the Commissioner will not be deterred in her important role in ensuring New Brunswickers have access to information.

Hilary Young is an Associate Professor in the Faculty of Law at the University of New Brunswick.