Ryan Armstrong, Executive Director of the non-profit Bad Science Watch, tells me he never published his first article critical of pseudoscience for fear of a lawsuit. “My work also went a bit further than science debunking and into the domain of questionable business practices as well, which was the riskier material,” he adds. As he was finishing his article, he realized that the organization he was criticizing had sued someone else for leaking documents he was quoting from in his piece.
He had every reason to be worried. Many of us exposing the crummy underbelly of pseudoscience and questionable health practices are well aware of the lawsuit against Dr. Steven Novella, which ended with Novella winning a little over a year after being served. But a few years later, another lawsuit is ramping up, this one from a medical doctor who treats Lyme disease and who is suing Novella and his Science-Based Medicine colleagues.
We rarely discuss these issues in public. On my end, I am aware of healthcare professionals who were genuinely distressed when complaints were made to their order because they dared to state that a type of alternative medicine didn’t work. Olivier Bernard, one of Quebec’s best known science communicators, shocked many people when he revealed he would refrain from criticizing vitamin C injections in the future following doxxing and an avalanche of threats. And many of us have received cease-and-desist letters which our lawyers strongly recommend we do not discuss publicly, for fear that we will add fuel to the fire of defamation.
So I felt we needed to discuss this legal arena. I reached out to two Canadian lawyers, corresponded with many experienced communicators who’ve been on the receiving end of cease-and-desist letters, and heard from younger colleagues who worry about legal thuggery. What I learned shows how complicated the situation is. And while I thought Canada had pretty robust protections against trivial accusations of defamation, it turns out our country is very friendly to them.
The lay of the legal land
First, a bit of Linnaean taxonomy for this area of the Canadian law. The branch we’re interested in is called tort. Under tort, we find defamation. Defamation can itself be split into two, libel (which is permanently recorded, such as a blog post) and slander (which is not, like a spoken statement), although many Canadian provinces have abolished the distinction between the two.
To defame is to harm another person’s reputation by making a false statement about them to a third party. But you don’t need to make a false statement to be sued for defamation. There’s a particular type of lawsuit that has come to the attention of skeptics, because it tends to be used by a more powerful plaintiff who doesn’t like what was written about them and who intends to silence their critics by intimidating them and depleting their finances. It’s called a SLAPP suit, short for “Strategic Lawsuit Against Public Participation.”
Being sued for defamation can end up taking a lot of time, stressing you out, and costing a lot of money. How much money? “There’s a lot of variability,” says Hilary Young, an associate professor at the Law Faculty of the University of New Brunswick. “Most cases don’t go very far and get settled. Then you’re in, maybe, the thousands of dollars. Once you get into litigation, you’re definitely in the tens of thousands of dollars or more.”
How friendly are Canadian laws to an easily disgruntled plaintiff? “We’ve got pretty plaintiff-friendly defamation laws,” Young says. She tells me that we have acquired a few more speech-friendly protections along the way, but the Internet is making things a bit more complicated. “I think the Internet is causing problems for all of us in the common law world in trying to figure out the right balance for libel laws.”
And our laws are not the only ones we should be mindful of as Canadians. There is an option known as “forum shopping” that is made all the more accessible thanks to our connected world. It means that, in theory, you could be sued in more or less any court in the world. “You forum-shop by finding some tenuous connection to the forum in which you want to have a lawsuit happen,” says Allen Mendelsohn, a lawyer specializing in Internet law who teaches at McGill. “As long as you have somebody in that forum reading the thing on the Internet, you can make a claims that that is the connection. There are certain places that are much more welcoming for plaintiffs to sue in.”
But the question on everyone’s lips is, “What could I say that would get me in trouble?”
Sticks and stones may break my bones, but words can defame me
You can safely hyperlink to a statement that is alleged to be defamatory. Our Supreme Court made sure of that. But can you quote a defamatory statement and be sued for defamation for it? “You bet,” says Young. What about innuendo, without a clear defamatory accusation? “What would ordinary people think?” she asks back. “It doesn’t matter whether your accusation is clear, what the literal meaning is; it’s how would people understand it and would they think less of the other person.”
Can you say that you think someone is a charlatan instead of claiming they are? “Some comment is protected, but you can be liable for it,” Young says. “The clearer it is that the statement is opinion or an inference, the more likely it is to be protected as comment.” A court has to look at the article as a whole rather than focus on individual words, however. “Regarding the word ‘charlatan’… the court could say it’s an accusation of dishonesty, of fraud, that it clearly defames… or they could look at it more contextually as someone’s opinion.”
So how do you defend yourself?
The onus is on you
In the common law world (all of Canada minus Quebec, as well as countries like England, Australia, and India), the onus is not on the wronged party to prove damages; it is on the defendant to prove that what they wrote was not defamatory. “There are a half dozen defences, but about four are commonly used,” Young tells me. You can prove that your statement was true (“That’s a complete defence!”). Of importance to journalists, you can claim “responsible communication on matters of public interest”, meaning that you acted reasonably and diligently to verify your facts before publication. You can prove you spoke on an occasion of privilege (such as the case of a job reference). Or show that yours was fair comment, a statement of opinion on a matter of public interest.
If you do win the lawsuit, you may think that all of your legal fees will be paid for by the losing party. Think again. The payment is actually based on a tariff system of estimates, “which usually works out to less than half of what you paid,” Young tells me, unless the case is dismissed as a SLAPP suit in provinces with anti-SLAPP legislation, in which case the costs awarded to the defendant are higher.
Quebec is unique among the rest of Canada, especially when it comes to the law. While the rest of the country uses common law derived from England, Quebec adopted a civil law based on the French legal system, and it has no defamation law per se. “In Quebec,” Allen Mendelsohn tells me, “you sue someone based on article 1457 of the Civil Code, the same one you would use in any case where you were harmed.” Unlike the rest of Canada, a statement in Quebec can actually be true and still be defamatory, as long as it causes damage to the reputation of the plaintiff.
Mendelsohn says the province has anti-SLAPP provisions in its Code of Civil Procedure. “Quebec has led Canada in that regard,” he says. “We have an effective anti-SLAPP law.”
But if the suit is not dismissed and you have to defend yourself, proving your statement was true simply does not cut it in Quebec. “Your arguments are that the words you stated really don’t reduce the reputation of the plaintiff, or that the other person’s reputation was in tatters anyway, what you said didn’t cause it.” But truth can be helpful. “In Quebec, a judge will take the fact that a statement was true into consideration when making his damages award.”
One must imagine Sisyphus happy
Ryan Armstrong hasn’t let his initial fears of getting sued prevent him from defending the home front for science. As the newly-minted director of Bad Science Watch, a consumer watchdog for the whole of Canada, he has been very active in denouncing antivaccination beliefs among the higher-ups of the College of Chiropractors of Ontario, both on his blog and in the press.
Paul Knoepfler, a stem cell researcher who blogs at The Niche, has received legal threats from stem cell clinics and suppliers, yet he continues to expose bad science and dangerous interventions. “The clinics generally don’t really want such lawsuits as they are afraid of bad PR via the Streisand effect,” he writes to me. “They worry about what the discovery process in court might mean for exposing what they are doing.”
Legal threats are par for the course when scientists and healthcare professionals dare to tackle controversial topics to protect the public from those who would abuse their trust. Luckily, few of these threats result in all-out legal warfare. We don’t know what percentage of defamation cases specifically go to trial in Canada, but for civil claims as a whole, Professor Young says it’s between 3 and 5%.
And frivolous lawsuits can’t always be recognized as such early on. “How do you know if something is not a meritorious claim if you don’t litigate it?” Young asks me rhetorically. That being said, there is anti-SLAPP legislation in Ontario and British Columbia, and some equivalent of it in Quebec’s Code of Civil Procedure. “The Ontarian approach seems to be working pretty well,” she says. “It’s shutting down a lot of cases at an early stage, but not all.”
In the U.S., anti-SLAPP legislation exists in some but not all states. Across the Atlantic, a very apropos case, that of the British Chiropractic Association v Singh, was instrumental in reforming British defamation law.
Defending good science when its language is hijacked by swindlers and fools can feel like hiking up a never-ending mine field. The people whose falsehoods, exaggerations, and unproven claims we debunk tend to sit on a much larger financial cushion than our own, thanks in large part to their profitable untruths. Many of us worry about not being able to legally defend our science-based refutations. That is why I recently proposed to Quebec’s Chief Scientist that a fund should be made available to science communicators who fall victim to a SLAPP suit in order to facilitate their defence. Otherwise, we risk creating an agora where fewer voices chime in on matters of public interest. In an age where social media only accelerates the spread of dangerous misinformation, it would be a sad step backwards to an era of traveling medicine shows and snake oil salesmen, seductive and unopposed.