Wednesday, July 24, 2013

Salmon Tale SLAPP

On July 22, 2013, the Court of Appeal for British Columbia overturned a trial court decision that had supported the legal rights of the Global Alliance Against Industrial Aquaculture ("GAAIA") to carry out an aggressive publicity campaign against Mainstream Canada, which operates salmon farms on the coast of Canada's Pacific Southwest.  According to its website, GAAIA is
an international network dedicated to advancing environmentally and socially responsible aquaculture. GAAIA recognizes that salmon, shrimp, tuna and 'Frankenfish' farming jeopardizes sustainable and safe seafood production. By highlighting worst aquaculture practices, GAAIA will lead the fight against standards-setting and certification schemes for farmed salmon and shrimp farming in particular.
The Court of Appeals summarized the events leading up to the appeal as follows:
The appellant sought general and punitive damages for allegedly defamatory comments made by the respondent in various publications, as well as a permanent injunction restraining him from publishing similar words and images in the future. The trial judge found the defence of fair comment applied to the defamatory comments and dismissed the action. In holding that the defence applied, the judge found that a determined reader could have located the facts upon which the comments were based.
The Court then explained its decision to side with Mainstream Canada, and grant it substantial damages:
The trial judge erred in finding the test for the defence of fair comment was satisfied. The defamatory publications did not identify by a clear reference the facts upon which the comments were based that were contained in other documents. The trial judge’s order dismissing the appellant’s claim is set aside, and the permanent injunction is granted. As it is in the interests of justice for this Court to assess damages rather than order a new trial, the appellant is awarded general damages of $25,000 and punitive damages of $50,000. The respondent is punished for his misconduct during the trial by awarding the appellant special costs of the action.
It is now likely that GAAIA will petition to appeal the British Columbia Court of Appeals' decision to the Supreme Court of Canada.  The Supreme Court may be tempted to accept such an appeal to help clarify the conditions under which the defence of fair comment should succeed against an allegation of defamation.  However, even if GAAIA is granted leave to appeal, its journey to vindication in the Supreme Court, against its deep-pocketed opponent, may be just as difficult as the upriver odyssey made by the wild salmon the organization hopes to protect.