A Practical Guide to Creep Catchers Defamation
by Craig E. Jones, Q.C.
Introduction and Disclaimer
This is not meant to be a comprehensive review of the law of defamation, but rather a basic guide to the applicable rules and your options in the context of the Creep Catcher phenomenon. I cannot stress enough the importance of getting legal advice as soon as possible: every defamation case is unique and fact-specific; this document is meant only as an overview of the law as it may apply in Creep Catchers cases.
In British Columbia, you must file defamation cases in the Supreme Court – that is, you cannot bring a Small Claims Court case for defamation. Note that the Libel and Slander Act also requires that the case be filed in either the County (judicial district) where (a) the plaintiff resides or (b) the Defendant is based. Make sure that your lawyer (if you retain one) is aware of this.
What is Defamation?
Defamation is the publication of words that are harmful to a person’s reputation; that is, things that are said that tend to bring you into disrepute with other members of the community.
What is not defamation? Simple insults are not defamation, nor are characterizations of your behaviour that might be objectionable. It is impossible to comprehensively define a test without knowing particular circumstances, but it is important to realize that not everything said that is nasty is actionable, no matter how much it makes your blood boil: we are all expected to put up with insult, even some malicious insult, in the cut-and-thrust of social debate.
Also, defamation requires that the slanderous words be made, not just to you, but to at least one other person. This is called “publication”. With respect to statements made over the internet, this is a given, but keep in mind that large and highly public defamation is considered to be much more harmful than one made only to only a few Facebook “friends”.
There are two basic categories of defamation: libel and slander. Slander is spoken defamation: because it is ‘transitory’, you cannot sue for it unless you can prove that you have suffered harm. There are a few exceptions to this general rule, but because we are not focused here on spoken words I needn’t discuss them any further.
Libel is written defamation, or words that are otherwise published in some tangible form. Electronic broadcasts, such as internet videos, are also considered to be libel. Facebook posts, twitter messages, and so on, are libel. The main distinction from slander is that libel is actionable without having to prove damage; it is assumed to be harmful.
In the context of the Creep Catchers debate, libel might include anything said on the internet and accessible to at least one other person which wrongly suggests that you are:
- A pedophile;
- A child sexual predator; or
- A person who endorses, supports or encourages the commission of criminal offences against children.
So being directly or indirectly called a “pedo”, “pedo lover”, “pedo supporter” are all defamatory statements. The basic question the court will ask is “what is the ordinary meaning of the words spoken”?
However, it is also possible to sue for “innuendo”, which is when one either uses ‘code words’ (“creep”, “skinner”, “goof”) which are, in context, taken to indicate a pedophile or child predator, or otherwise suggest, without saying, that you are one (like “I know why Mr. X is so quick to defend pedophiles… he obviously has skeletons in his own closet?”, or “that guy is right now sitting in his car outside a school with his pants down”, etc.).
There are available defences. If the Defendant can show, for instance, that the words were, in their essence, true, your claim will fail. It may also fail if the Defendant successfully argues that the statements were “fair comment” or published “in the public interest”. Courts also allow considerable latitude for intemperate, even false, statements made in response to attacks during a public debate.
In my overall opinion, falsely accusing a person of being a child sexual predator or a supporter of “pedos” goes beyond legitimate comment or response, however every case is context- and fact- specific. I cannot emphasize enough the importance of getting good advice as early as possible from a lawyer conversant in defamation law.
Who is Liable?
The person who makes a defamatory statement is of course liable. Also, if a person maintains a web page or social media platform and allows others’ defamatory posts to be made there (and who does not remove them in a reasonable time) may also be liable for the defamation. In most cases, the companies that operate the social media sites will not be responsible, nor will people who passively link to defamatory postings.
What is the Remedy?
The principal remedy for defamation is damages; that is, money that the defendant is ordered to pay for the harm caused. If the defamation is particularly heinous, extra damages (called “punitive” or “exemplary” can be awarded. You can also be awarded “costs”, which is an amount to (usually only partially) compensate you for the expense of pursuing your claim.
I caution that awards in defamation cases are low, usually only several tens of thousands of dollars even in quite serious cases. Rewards in the hundreds of thousands of dollars are exceedingly rare, and usually reserved for cases in which people are accused of profoundly serious crimes, such as genocide or murder.
Keep in mind also that if you lose your case, you may be responsible for the Defendant’s costs, and these can be thousands of dollars.
OK, I Believe I’ve Been Defamed. What Now?
It is generally not advisable to descend into online debate with a person who has defamed you. These can get heated, and your interests are not served if you yourself become intemperate. I have five further pieces of general advice:
First, document and record everything and keep a diary. Screen shots, downloaded videos, everything you can find. Not just the defamatory statements, but also:
- Any other statements made by the defamer or others online that affect your reputation, if they appear linked to the defamatory statements;
- Any evidence that the defamation is causing you harm. Have friends/family indicated awareness of the statements? Has your employment or business been affected? Have your children heard about it in school? Have you received threats? Have you had to consult with physicians, counsellors, etc.?
Second, if you can afford to, consult a lawyer right away. He or she can provide some analysis of the statements and the prospect of success. Many lawyers will offer a free initial ½ hour consultation. Before taking any action, discuss with the lawyer:
- Your prospects of success on the merits of your claim;
- The time that will elapse before any remedy is granted – cases often take months and even years to work their way through the civil justice system, although interim or “interlocutory” injunctions can be sought very quickly;
- The likelihood of recovering damages or obtaining a permanent injunction a court order restraining further publications and/or for removal of the defamation from web pages); and
- The risk of more harm to your reputation that may occur when you call further attention to the defamation by filing a lawsuit.
Third, choose your defendant carefully. Ideally, you will want to sue people who have the money to satisfy a judgment if you get one. Does the defendant have property that can be seized and sold to satisfy a judgment? Are they insured? Do they have a job so that their wages can be attached to satisfy a damages award? A lawsuit can be filed for a few hundred dollars, but litigating a case to conclusion can be expensive, and even if you win, collecting from defendants can be protracted and frustrating. Legal fees can easily run into the tens of thousands of dollars for even a straightforward case, and recoveries are relatively low, often less than what is spent pursuing the claim. Lawyers generally will not take defamation cases on “contingency” (that is, for a portion of the eventual reward), unless they are confident that there will be a recovery justifying their time. You may be able to find a lawyer who will act pro bono (without fee), but you should not expect this.
Fourth, consider demanding a retraction and apology immediately. This can be combined with an offer to settle (you can demand an immediate payment from the defamer, and this may be advantageous if it is rejected and you later win). An apology and retraction should be at least as widely disseminated as the original defamatory statement.
Finally, think carefully about your own position. Defendants in defamation cases may try to prove that your reputation hasn’t suffered because it is poor to begin with. They may also argue that the words spoken were, in their essence, true. In other words, defamation cases often cast a spotlight on the virtues and vices of the victim. If your background is less than lily-white, you can expect to be dragged through the mud should the matter proceed to trial.
This is particularly relevant if you have been the “target” in a creep catcher “sting”. Even if you are innocent of criminal wrongdoing, ask yourself whether the “chat logs” or other things you have done or said reveal evidence to support accusations that you acted inappropriately toward a child; if they do, it will almost never be in your interest to bring a lawsuit. Also consider whether anything you’ve said against the defendant might leave you vulnerable to a counter-suit.
On the other hand, if your reputation is particularly vulnerable (if, for instance, your livelihood involves working around children), your claim may be stronger.
A defamation case is not to be initiated lightly. It is a difficult, arduous, and often in the end frustrating process. With the Creep Catchers, legal proceedings have often triggered harsh retaliation from the defendant or his supporters. Filing a lawsuit may even, in the end, cause more harm to you than good. But sometimes it is the least bad of all possible options, especially when the main alternative is to do nothing as your reputation is sullied, essentially forever, on the internet.