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Derogatory article on BC scientist not defamation

Hauer & Co. > Defamation  > Derogatory article on BC scientist not defamation

Derogatory article on BC scientist not defamation

DEROGATORY ARTICLE ON B.C. SCIENTIST NOT DEFAMATORY

In a recent decision of Weaver v. Ball, 2018 BCSC 205 the plaintiff, Dr. Andrew Weaver, sued the Defendant, Dr. Timothy Ball, for defamation.  He sought  damages from Dr. Ball. On January 10, 2011, an article entitled “Corruption of Climate Science Has Created 30 Lost Years” was published on an internet website known as “Canada Free Press”. The article was written by the defendant, Dr. Timothy Ball. The central thesis of the article is that modern climate science has been corrupted by money and politics.  Dr. Ball says there is inadequate data to support claims about humans’ contribution to climate change and global warming. The Article refers to the plaintiff, Dr. Andrew Weaver, in ways in which Dr. Weaver claimed are libelous. According to Dr. Weaver, he was “stunned” by the suggestion in the article that he was corrupt and unqualified to teach his students.

Dr. Weaver is a professor in the School of Earth and Ocean Sciences at the University of Victoria (“UVIC”). Dr. Ball is a retired professor from the Department of Geography at the University of Winnipeg, who holds a PhD in climatology and who taught in the field for many years. Dr. Weaver is well-known as a leading voice in favour of the need to take action to address climate change.  Dr. Ball, on the other hand, is what might be described as a climate change sceptic. Dr. Weaver and Dr. Ball have well-defined differences in opinion that were established well before Dr. Ball wrote the Article in January 2011. Dr. Weaver subsequently searched the Article online and discovered that it had been republished on other websites. He described his reaction to the republications as “saddened, sickened and dismayed”.

Dr. Weaver very quickly retained counsel who wrote to Canada Free Press on January 14, 2011, demanding a retraction of the Article and an apology. Canada Free Press deleted the Article from its website on January 18, 2011, and published a retraction and apology which ran for a number of days. On March 3, 2011, Dr. Ball issued an apology admitting that the article entitled “Corruption of Climate Change has Created 30 Lost Years” contained untrue statements about Dr. Andrew Weaver. Dr. Ball’s apology was substantially in the form requested by Dr. Weaver.

The Court stated that to establish a claim in defamation, a plaintiff must establish three elements: i) that the impugned words were defamatory; ii) that they referred to the plaintiff; and iii) that they were published, meaning that they were communicated to at least one other person. Where the plaintiff establishes these elements, falsity and damage are presumed and the onus shifts to the defendant to advance a defence in order to escape liability.  Words that tend to lower the plaintiff’s reputation in the eyes of a reasonable person are defamatory.

One of the challenges in defamation cases is that words are imprecise instruments of communication. The same words used in a particular context may lead different minds to reach divergent conclusions for variant reasons. Not every criticism of a person or disparaging comment is defamatory. A defamatory statement is one that has a tendency to lower the reputation of the person to whom it refers in the estimation of right-thinking members of society generally and, in particular, to cause him or her to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem. The test is an objective one.

The standard of what constitutes a reasonable or ordinary member of the public is difficult to articulate. It should not be so low as to stifle free expression unduly, nor so high as to imperil the ability to protect the integrity of a person’s reputation. The impressions about the content of any broadcast – or written statement – should be assessed from the perspective of someone reasonable, that is, a person who is reasonably thoughtful and informed, rather than someone with an overly fragile sensibility. A degree of common sense must be attributed to viewers or readers.

Whether a statement is defamatory is to be determined from the natural and ordinary meaning of the words. Further, the impugned statement must be considered in the context of the publication as a whole. The traditional axiom is that “the bane and the antidote must be taken together”, that is, a statement taken out of context may be considered defamatory but its “sting” may be neutralized by another part of the publication.

There are three alternate means by which a defamatory meaning may be established:

  1.  If the literal meaning of the words complained of are defamatory;
  2. If the words complained of are not defamatory in their natural and ordinary meaning, but their meaning based upon extrinsic circumstances unique to certain readers (the “legal” or “true” innuendo meaning) is defamatory; or
  3. If the inferential meaning or impression left by the words complained of is defamatory (the “false” or “popular” innuendo meaning).

In the present case, Dr. Weaver said that it is the inferential meaning of the impugned words that are defamatory.

An inferential meaning is the impression an ordinary, reasonable person would infer from the allegedly defamatory material. An inferentially defamatory meaning excludes any special knowledge that the recipient may have. The court is not limited to meanings offered by the parties, but the meaning offered by the plaintiff is to be treated as the most injurious meaning the words are capable of conveying. Once defamatory meaning is established, the plaintiff must then prove that the impugned words are “of or concerning” him or her.  Finally, the plaintiff must prove publication.

In addition to the three well-established elements of the tort of defamation described above, Dr. Ball submitted that, like UK law, Canadian law should now recognize a fourth element which would require a plaintiff to prove that the publication complained of “substantially affects in an adverse manner the attitude of other people towards him or has a tendency to do so”. Dr. Ball described this element as introducing a threshold of seriousness into the tort so as to preclude de minimis claims in which there is no reasonable prospect of harm to reputation or damage and, in turn, would strike a better balance between the legitimate objects of defamation law and the essential value of free expression enshrined in the Charter.

The Court accepted that in the rare case where a claimant brings an action for defamation in circumstances where his reputation has suffered no or minimal actual damage, this may constitute an interference with freedom of expression that is not necessary for the protection of the claimant’s reputation. Dr. Ball submits that the present case is a good example of the need to incorporate a seriousness threshold into the law of defamation given the absence of evidence of any actual or likely damage to Dr. Weaver’s reputation.

The Court held that whether Canadian law will or should follow the trend established in the UK authorities cited by Dr. Ball is a matter better left for appellate courts. That said, the Court noted that it was arguable that such a threshold is already present, at least implicitly, in the current law. This is reflected in the requirement that the impugned words be assessed from the perspective of a reasonably thoughtful and informed person, rather than someone with an overly fragile sensibility, as well as the requirement that the words must genuinely threaten the plaintiff’s actual reputation.

Where a plaintiff proves the requisite elements for defamation, the burden shifts to the defendant to establish a defence in order to escape liability. Here, Dr. Ball relies on the defences of fair comment, responsible communication and qualified privilege. The defence of responsible communication protects defendants against liability for false and defamatory statements in circumstances where the publisher has acted responsibly in attempting to verify information on a matter of public interest.  The defence of qualified privilege arises at common law when the defamatory words are published in a manner and at a time that is “reasonably appropriate in the context of the circumstances existing on the occasion when that information was given”.

Dr. Weaver submitted that the inferential meaning of the words complained of in the Article is defamatory in that they convey to readers that Dr. Weaver is both incompetent and corrupt. He submitted that the allegations contained in the Article struck at the heart of his role as a teacher and scientist. Dr. Weaver further submitted that Dr. Ball failed to establish the requisite elements of any of the defences advanced. Dr. Weaver sought an award of general damages as well as aggravated damages.

Dr. Ball submitted that the article was not defamatory in that a reasonable and right-thinking reader would not interpret the words used as an attack on the reputation of Dr. Weaver. Further, while the Article mentions Dr. Weaver, its focus is on climate science and politics more generally and thus it is not “of and concerning” Dr. Weaver. Dr. Ball also submitted that there is no evidence of publication within the Court’s jurisdiction, specifically, there is no evidence that anyone other than Dr. Weaver read the article in BC.

Alternatively, Dr. Ball relied on the defences of fair comment, qualified privilege and responsible communication. He submitted that the statements made in the Article are clearly opinions on a matter of public interest. He submitted further that both he and Canada Free Press apologized to Dr. Weaver and that Dr. Weaver has suffered no loss, either financial or reputational.

The Court accepted Dr. Ball’s characterization that the Article is an opinion piece directed at an issue of public interest, namely, climate change and the role of humans in contributing to global warming. While Dr. Weaver is mentioned in the Article, he is not its primary focus. Further, despite Dr. Ball’s history as an academic and a scientist, the article was rife with errors and inaccuracies, which suggests a lack of attention to detail on Dr. Ball’s part, if not an indifference to the truth.

In his notice of civil claim, Dr. Weaver allegeed the following inferential meanings of the impugned words set out in the Article:

  1. He is not competent or qualified to teach climate science to university students;
  2. He cheated Canadian taxpayers by accepting public funding for climate science research although he has little or no knowledge about climate science;
  3. In the meeting in his office with Dr. Ball, he displayed symptoms of paranoia because he fears his incompetence, lack of academic qualifications and corrupt exploitation of the Canadian taxpayer will be exposed
  4. He bribed university students with research funds so they would participate in useless computer modeling studies which had little scientific value, with the objective of continuing to receive unwarranted personal financial benefit from government funding;
  5.  He dishonestly claimed on his website to be a “climatologist” but removed that claim when challenged by Dr. Ball;
  6. He shuns involvement in public debate about global warming because it would publicly expose his professional incompetence, his inadequate knowledge about climate science, and his corrupt exploitation of public resources;
  7. He shamefully conspired to have his students interrupt Dr. Ball’s presentation at UVIC in order to suppress the truth by preventing honest and open debate about the existence of global warming and/or whether humans are causing or contributing to global warming;
  8. He shamefully conspired with his students to deter people from attending Dr. Ball’s UVIC presentation in order to stifle Dr. Ball’s views and prevent people from learning that his views on global warming have no scientific basis;
  9. He teaches his students little or nothing about climate science because he lacks the requisite knowledge, does not have academic qualifications, is nothing more than a computer technician, and is blinded by personal bias;
  10. He knows that the reports of the IPCC concerning global warming are unscientific and corrupt, and is therefore dishonestly trying to dodge personal responsibility for his involvement in those reports by dissociating himself from the IPCC; and
  11. He dishonestly obtained substantial public funding from Environment Canada for climate science research despite knowing that he lacked the necessary education, training, and intelligence to carry on competent research.

In making its decision, the Court agreed with Dr. Ball that many of the meanings advanced by Dr. Weaver are extreme and are not borne out when the words are considered from the perspective of a reasonable, right-thinking reader. This requires the court to assess the words objectively, and not to attribute the worst possible meaning or the meaning that might appear to the plaintiff or a person with an overly fragile sensibility.

Specifically, the Court did not accept that the Article, read in its entirety and properly construed, alleges dishonesty on Dr. Weaver’s part or attacks his character in the sense of imputing moral fault or blameworthiness

In dismissing Dr. Weaver’s claims, the Court held:

[77]        In my view, it is very unlikely that the Article and the opinions expressed therein had an impact on the views of anyone who read it, including their views, if any, of Dr. Weaver as a climate scientist. Rather, the reasonably thoughtful and informed reader would have recognized the Article as simply presenting one side of a highly charged public debate.

[83]        In summary, the Article is a poorly written opinion piece that offers Dr. Ball’s views on conventional climate science and Dr. Weaver’s role as a supporter and teacher of that science. While the Article is derogatory of Dr. Weaver, it is not defamatory, in that the impugned words do not genuinely threaten Dr. Weaver’s reputation in the minds of reasonably thoughtful and informed readers. Dr. Weaver has therefore failed to establish the first element of the defamation test.

[84]        Given this finding, I need not consider whether Dr. Weaver has established that the Article was published in the sense that it was downloaded and read in BC by anyone other than him. I also need not address the defences raised by Dr. Ball.

 

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