By Mark Leiren-Young
In 2005, David Eby was starting his legal career when he was threatened with a lawsuit over comments that he’d made about a death. The police were involved. Eby was working for the Pivot Legal Society — a Vancouver-based organization formed to use legal means “to address the root causes of poverty and social exclusion” — and he was certain his comments were true. “I got a defamation threat from the police commissioner and withdrew my comments, but refused to apologize.”
Eby learned two vital lessons.
“One was positive in that I learned to be extremely careful to back up everything that I said 100% with documentary proof,” says Eby. “The second piece that I took away from it was wow: it was remarkably easy for that office to shut down our comment.”
Eby is now British Columbia’s attorney general, and the Book and Periodical Council has named him its 2020 champion of free expression for passing a law that will make it a lot harder to shut down those types of comments.
One of the most effective and insidious forms of censorship is making it impossible to tell a story. The threat of suing for defamation is often enough to scare off journalists — or their employers — before they’ve published a word.
These threats — which are also used to silence non-governmental organizations, advocacy groups and activists — are known as strategic lawsuits against public participation (SLAPPs).
Eby explains the concept: “It’s a lawsuit that’s filed to silence somebody on a matter of public interest.” The deterrent in SLAPPs usually has less to do with the chance of losing the lawsuit than the cost of fighting it.
In British Columbia, environmental groups and activists are regularly threatened with SLAPPs — or hit with SLAPP suits — for challenging projects such as pipelines, mines and fish farms.
Leaning back in a chair at the head of a boardroom table in the B.C. government’s cabinet office overlooking the Vancouver waterfront, the lanky (six foot seven inch) 43-year-old smiles and laughs often as he talks about his history with free expression issues.
Eby is one of British Columbia’s brightest political stars. When the B.C. NDP was looking for a new leader after an unexpected election loss in 2013, Eby was considered the top contender. The leadership race coincided with Eby’s impending fatherhood, and he backed John Horgan for the job. When Horgan became premier in 2017, Eby was named attorney general.
Eby is originally from Kitchener, Ont. His mother was a teacher and his father was a personal injury lawyer. At a university protest, Eby watched lawyers teach activists how to deal with being arrested and was inspired to go to law school. He was also inspired to write The Arrest Handbook: A Guide to Your Rights.
Eby studied law at Dalhousie University in Nova Scotia before he worked for Pivot from 2003 to 2008. He was called to the bar in 2005. After leaving Pivot, Eby spent four years as executive director of the British Columbia Civil Liberties Association (BCCLA), where he worked on numerous freedom of expression cases.
The organization was on the front lines of censorship battles between Canada Customs and Little Sister’s Book and Art Emporium, Vancouver’s gay and lesbian bookstore. The BCCLA and Little Sister’s fought their first court battle to stop government book seizures at the border in 1994.
Eby was also at the BCCLA for some strange free expression fights that took place during the Vancouver 2010 Olympics.
“We did a lot of work around the Olympics and free expression — in particular anti-Olympic speech — so people wouldn’t be subject to trademark litigation or threats because they had a restaurant that was called Olympic Pizza or they used the Olympic rings in their protest signs,” he says.
While at the BCCLA, Eby fielded so many requests to fight SLAPPs that the association began championing the creation of anti-SLAPP legislation.
B.C.’s NDP government passed Canada’s original anti-SLAPP law in 2001. After the party was ousted from government later that year, the B.C. Liberals overturned the legislation. Eby says the 2001 law was flawed. “You had to actually show that the person who was suing you had a bad motive … which is obviously a very difficult thing to prove.”
In 2019, Eby’s Protection of Public Participation Act addressed that flaw. He used older, related legislation in Ontario as a guideline.
In 2019, B.C.’s legislature unanimously passed Eby’s law. This achievement is almost unheard of in British Columbia, where it’s challenging to get the opposing parties to agree on the weather.
It likely helped that several of Canada’s most eminent jurists — including two former federal Supreme Court justices — wrote an open letter advocating anti-SLAPP legislation. Another open letter which supported the legislation was signed by writers’ organizations such as PEN Canada and the Writers’ Union of Canada, more than two dozen environmental groups, the BCCLA, Amnesty International Canada and the Union of British Columbia Indian Chiefs.
The new law allows journalists to argue that they are speaking out on a matter of public importance and that the harm in allowing a lawsuit to go ahead outweighs the benefit to the public.
The court is supposed to look at a question, Eby says. “Is this journalism, or is this just an expletive-laden blog post that has no reasonable chance of being true, or is this speech that should be protected against these kinds of lawsuits?”
The law doesn’t consider whether a story is true or defamatory.
“The idea is to re-weight the scales to say, We think it’s more important that there be free and open discourse about these things — even if it means that someone’s reputation is briefly or slightly or temporarily or even permanently affected by it — because it’s more important to have freewheeling debate than it is to restrict people in advance of speaking about important issues in a democracy,” Eby says.
Often the threat of a lawsuit is just a threat, but the targeted person or group can’t afford the cost of calling the bluff. “The reality is a lot of letters get written and very few lawsuits actually get filed,” says Eby. “My hope is that the legislation gives some more confidence to people who receive these threatening letters.”
One challenge for any law dealing with journalism in the age of social media and truthiness is defining journalism. “There’s nothing in the act that says this has to be a capital J journalist and a capital P publication,” says Eby.
“There is a lot of free speech in Canada, but this defamation piece was a notable exception. People with means, who are motivated, could really shut down negative news stories or people who were saying things that they didn’t like about them on the Internet,” says Eby. There wasn’t “any kind of counterbalance.”
But things have changed. “[We can] say, ‘Hold on a sec. Is this a proper use of the courts to shut down this kind of speech?’ I think we’ve got that now.”
B.C.’s Protection of Public Participation Act
Under the law, which received royal assent on March 25, 2019, a defendant may apply to the court to dismiss a lawsuit because it impinges on the defendant’s ability to speak freely on a matter of public interest.
If the court agrees, then it will dismiss the lawsuit, unless the plaintiff can satisfy the court that the harm that the plaintiff would likely suffer as a result of the defendant’s speech would outweigh the public interest in protecting it.
The act further protects public participation by allowing the court to fully indemnify the defendants for costs.
Mark Leiren-Young (leiren-young.com) is an author, playwright, satirist and host of the Skaana podcast about ocean issues. His most recent book is Orcas Everywhere. Mark first joined the Book and Periodical Council’s Freedom of Expression Committee to represent the Playwrights Union of Canada in 1999. He now represents the Writers’ Union of Canada.
Photos of David Eby © Province of British Columbia. All rights reserved. Reproduced with permission of the Province of British Columbia.
Reprinted from Freedom to Read Kit 2020.