In a recent episode of the podcast The life of the site, a host and a guest were joking about whistling at “a sexy woman on the street” and pretending to catch it. Carpenter Natasha Fritz then asked to come on the show to talk about sexual harassment in the construction industry.
A meeting was set up but podcasters Manny Neves and Jim Caruk changed their minds. In response, Fritz created a Instagram post, alternating clips from the podcast with statistics on sexual harassment and violence. Neves and Caruk then filed a $ 15.25 million defamation lawsuit..
A little over a week later, the podcasters said they were withdrawing the suit. They were right to do it because it had virtually no chance of success.
If they had sued him, the podcasters’ case would have been a candidate for quick dismissal under a “anti-SLAPP” law adopted in Ontario in 2015.
SLAPP stands for Strategic Lawsuit Against Public Participation – a lawsuit with little to no merit, targeting public interest discourse and perhaps meant to quell criticism. The law allows cases to be dismissed if they involve speech of public interest, unless the case is well-founded and the proceedings are in the public interest.
The problem of identifying SLAPPs
The anti-SLAPP law addresses a thorny issue: anyone can sue anyone.
If I don’t like what you’re saying, but it’s perfectly defensible, I can still sue you for libel. If I have more money than you, I can punish you or silence you by suing, even if I ultimately won’t win.
While the libel law is carefully balanced to protect both reputation and the right to expression, it may take years and a small fortune to defend against it.
Cases with little or no merit should be kept out of court, especially if they are a means of threatening or silencing critics. The problem is to identify such lawsuits without having a lawsuit.
Ontario’s solution to the problem
As of 2015, lawsuits in Ontario can be dismissed at an early stage if they seek expression on a matter of public interest. These are usually libel cases, but not always.
Public interest is broadly defined: matters in which certain people have a real interest. Prosecutions targeting expression on a matter of public interest will survive the motion to dismiss only if two things are proven: first, there is evidence that the request will be accepted; and second, the prejudice caused by the dismissal of the case outweighs the prejudice caused by the continuation of the case.
If a case is dismissed, the party who brought the action must fully compensate the other party for its legal costs, which can be important. This makes it more risky for someone to sue for libel.
The Construction Life trial: a case study
While the construction podcast’s case has not been tested under anti-SLAPP law, this is exactly the kind of case the law was meant to deal with. This may explain why it was withdrawn so quickly.
On an anti-SLAPP motion, a court would not have decided whether Fritz’s Instagram post was libelous – it would likely require a lawsuit and defeat the purpose of the motion. On the contrary, he would have decided whether the podcasters’ prosecution arose out of the expression of a matter of public interest, whether the case was founded and whether the prejudice caused to the plaintiff by dismissing the case outweighed the prejudice caused. to the public by letting it go forward.
Fritz’s Instagram post calling the podcast for its sexism is clearly a matter of public interest. Some people have a real interest in sexism in the construction industry.
It’s impossible to tell if the post is defamatory without knowing more about the podcasters’ claims. That said, he would likely be protected by defenses such as truth or fair comment. The podcasters case probably lacked “substantial merit.”
Finally, and most importantly, the court should have balanced the damage caused by dismissing the case against continuing its trial. While this analysis depends on the law and the evidence presented on the motion, podcasters would have had an uphill battle.
While the sexism allegations against Neves and Caruk are serious, they are based on the men’s own words, and there is considerable public interest in allowing citizens to speak out against what they perceive to be sexist attitudes.
Room for improvement
Much of this is good news: the law has recently evolved to protect public interest speech. And the anti-SLAPP law may have helped convince podcasters to withdraw their lawsuit.
Unfortunately, such laws only exist in Ontario and, since 2019, in British Columbia. Quebec has its own, quite different, rule targeting SLAPPs, but it is arguably less effective because it focuses on the grounds for bringing a lawsuit. That is why Ontario has taken a different approach.
It is time for the other provinces – perhaps even Quebec – to follow the example of Ontario and British Columbia.
Ontario law has been carefully crafted and has now been tested and interpreted by the courts for five years, including, most recently, in the Supreme Court of Canada.
The rest of the Canadian provinces and territories would simply have to adopt the language of the Ontario legislation, as British Columbia did. This would tip the scales in favor of public service speech without unduly restricting a person’s right to sue to protect their reputation.
The law protecting Fritz’s right to express himself should apply to all Canadians.