Public Interest in COVID-19 Discourse

Nothing has been more divisive or controversial in our lifetime than the COVID-19 pandemic, including the appropriate response, treatment, governmental measures, or what is in the public interest.

The discussions around these issues have been robust, and have occurred with family members, friends, and especially online. On some level, these discussions are healthy, and promote better decision-making in a democracy. But with all expression rights, there come limitations, including words that are defamatory.

These exchanges have perhaps been most pointed within the medical community, the body of professionals we have all turned to for expert insight to medical issues around the pandemic. One particular relationship resulted in a defamation lawsuit against numerous parties, and was dismissed in a recent anti-SLAPP motion in Gill v. Maciver, 2022 ONSC 1279.

The anti-SLAPP (Strategic Lawsuit Against Public Participation) provisions under s. 137.1 of the Courts of
Justice Act have been discussed by the Supreme Court of Canada, and involves a balancing exercises weighing the seriousness of harm to plaintiffs and the public interest in permitting the proceeding to continue, against the public interest in protecting the expression.

The main Plaintiff is a medical doctor who is a member of the Ontario Medical Association (“OMA”) Governing Council, who was well known for controversial positions, including that the “risks posed by the Covid-19 virus are exaggerated, vaccines are unnecessary, lockdowns are illogical, and hydroxychloroquine is an effective treatment for infection caused by the virus.” Much of this expression has happened online on Twitter.

This Plaintiff was also subject to discipline by the College of Physicians and Surgeons, specifically for expressing these views online. Section 36(3) of the Regulated Health Professions Act prevents use of this discipline in any civil action, but is still important background information more broadly in understanding the public interest in a review of the facts.

The Defendants included a number of physicians, who are also online on Twitter, including the former President of the OMA. Other defendants included other professors, academics, public health specialists, and a variety of publications and journalists. Justice Stewart described the broad collection of defendants for a claim of approximately $12 million as follows,

[51] One may well wonder about the motives of these full-time physicians who remain active in what might fairly be described as the politics of their professional associations in bringing proceedings seeking staggering money judgments against such a broad array of persons whom they claim to perceive as having injured their reputations. The sheer variety of their targets and the magnitude of their claims set them up to be examined pursuant to s. 137.1.

She noted that these types of proceedings were exactly the type of robust backstop that the anti-SLAPP legislation was intended to address, and concluded that all of the expressions or statements complained about by the Plaintiffs were made on matters of public interest, citizens freely expressing themselves on what will be the defining public health issue s of our time.

The comments involved included the spread of scientific information regarding the global pandemic. These comments were not made out of malice or ill-will, and were motivated by a perceived responsibility by academics and professionals to speak out when others express views that may lead members of the public to stop taking appropriate precautions,

[264] …Scientific and public health information about COVID-19 is a matter of obvious public interest, because everyone in the public has a substantial concern about this topic in that it affects the welfare of citizens, and in particular there has been considerable public controversy about vaccinations. This interest far outweighs any interest that could support allowing the action against him to proceed.

Accurate and reliable information is especially important during times of crisis. If critiques of unfounded and speculative views were readily found to be defamatory, this could have a troubling and dangerous chill on expression by the very professionals we rely upon in a society to counter misinformation.

While anti-SLAPP legislation may constrain the use of defamation claims to protect reputations, in this case it’s likely that it may have even saved some lives. That’s a balancing in favour of expression that certainly should be promoted in society.