How do you define contempt?

Here are some recent quotes from the leader of the Surrey Creep Catchers (SCC), following the order from the Office of the Information and Privacy Commissioner of British Columbia, regarding the requirement to destroy all material relating to 2 complainants that were former ‘catches’ of the SCC;

“Dipshit Commissioner… Fucking idiot.  You ain’t shit…”  

“Drew Mcskinner [referring to Privacy Commissioner Drew McArthur] can throw his weight around all he wants…… He’s just a small fry trying to super size his shit. Buddy your [sic] a mcnugget. You have no power over me…”

“My name is Ryan Laforge and the OIPC CAN SUCK IT”

That Ryan LaForge would not obey an order from the Privacy Commissioner was a foregone conclusion.  The question was really whether he would do it loudly and belligerently enough to attract the attention of the Attorney General of British Columbia.  Because the AG can ask the Supreme Court for an order that he (LaForge) and the other members of the SCC obey the Privacy Commissioner’s order, and more generally, that they obey the PIPA law.  And if they don’t, it is criminal contempt, not civil.  So his own words might have changed his prospects from a hefty fine somewhere down the road (which of course he’d also ignore) to the possibility of incarceration, which could happen within a matter of days, once the AG decides to act.

So in the coming week or so, look for news that the Attorney General’s patience with Mr.LaForge’s little tantrum has ended, and he’s heading for a little ‘quiet time’ in his ‘thinking corner’.

If you want to encourage the Attorney General to act, drop him a note at JAG.Minister@gov.bc.ca.

Me? I’m making popcorn, because this will be very interesting, indeed.

A Practical Guide to Creep Catchers Defamation

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.

Conclusion

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.

Print

The Guardian – October 2017

Charge stayed against man arrested in Creep Catcher case

The Regina Leader – September 2017

Facebook live video shows fight between Regina ‘creep catcher’ and unidentified man

The Abbotsford News – August 2017

The truth about online vigilante group Creep Catchers: Part One

Edmonton Journal – July 2017

Saskatchewan Creep Catcher charged for criminal harassment in Lloydminster

CBC – July 2017

Creep catcher’ arrested after confronting wrong man in Lloydminster

National Post – July 2017

Vigilante group Creep Catcher violates privacy of their targets, B.C. watchdog rules

VICE.COM – May 2017

Creep Catchers Threw Themselves a Fundraiser and It Was a Cult-like Spectacle

The Globe and Mail – May 2017

Two members of Surrey Creep Catchers face assault charges: RCMP


VICE.COM – January 2017

The Rise of Creep Catchers, Canada’s Vigilante Pedophile Hunters

Ottawa Citizen – September 2016

Creep Catchers: UBC law professor warns of vigilantism’s dangers

Edmonton Journal – April 2016

Edmonton creep catchers harm investigations into online child luring, police say

The Saskatoon StarPhoenix – July 2016

Column: There’s something creepy about vigilante Creep Catchers, writes John Gormley

The Cloverdale Reporter – November 2016

Help or harm? Lawyers fear Creep Catchers prioritize attention over due process

Kayla Lee – Criminal Lawyer – October 2016

Creep Catchers – Vigilante Justice, Entrapment, and Committing Offences

Radio

My Llyodminister Now – August 2017

‘CREEP CATCHERS’ MAY “ACTUALLY HINDER” INVESTIGATIONS: LLOYDMINSTER RCMP

News 1130 – February 2017

Surrey Creep Catchers investigation could be the end: lawyer


CKNW News Talk 980 – February 2017

B.C. privacy watchdog investigating Surrey Creep Catchers following complaint

CKNW News Talk 980 – October 2016

Surrey Creep Catchers wrongly identifies another man in viral video

CKNW News Talk 980

Alberta Creep Catchers member charged with criminal harassment

News 1130

Getting caught on Creep Catchers jeopardizes your job, even in the absence of charges

 630 CHED – Edmonton -September 2016

Vigilante “creep catchers” target wrong man in Calgary

Privacy Law Guide for Creep Catchers Groups

 

By Craig E .Jones, Q.C.

What is PIPA?

Originally there was a law called the Freedom of Information and Protection of Privacy Act (FOIPPA).  That Act provided for the protection of information collected by government, as well as ‘quasi governmental’ entitles like universities and Crown Corporations.  It also provides a process whereby members of the public can make “freedom of information requests” to gain access to government documents.

The more recent  Personal Information and Protection of Privacy Act (PIPA) extends privacy protection into the private sector.  PIPA governs the collection, use and dissemination of “personal information” by organizations beyond government.  It dictates what can be done with personal information by companies as well as unincorporated associations such as unions, sports teams, societies, and clubs.  Unlike FOIPPA, where the focus is on access to information as well as protection of privacy, PIPA is mainly directed at regulating the gathering, use, and release of personal information by private groups. A full text of the statute is available online: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_03063_01

Why is my Creep Catchers Group Subject to PIPA?

Creep catchers groups are subject to PIPA because they are “unincorporated associations”, which are “organizations” under the Act.  So as soon as the group gathers personal information, it must conform with the processes and restrictions of PIPA.  This is why the Erb case is important: the Office of the Information and Privacy Commissioner has decided, at least on preliminary review, that Surrey Creep Catcher is an “organization”.  They are now going to determine whether the SCC group has been operating in violation of the laws in the way it has gathered, used or disseminated personal information.

What is “Personal Information” under PIPA?

“Personal Information” includes almost any information connected to an individual.  So, let’s say in response to a CC ad, someone reveals something about themselves (where they live, their name, age, email address, hobbies and interests, etc), then that group has just “collected” “personal information” as it is understood in the Act.

Prior decisions have also established that pictures and video recordings, even if taken in “public” places, also constitute “personal information” and are protected.

There is a general exemption under PIPA for information that I collected by private individuals for their own personal or domestic purposes.  But as soon as an individual collects information for any other purpose, they become an “organization” subject to PIPA.

What are the Relevant Provisions for Creep Catchers?

The basic rule under PIPA is that organizations cannot collect, use or disseminate personal information without consent of the individuals involved.  Consent must be free and “informed”.  PIPA makes it clear that if information is gathered by deceit then there is no consent.  So if a CC group receives responses from online interlocutors who think they are talking to a female ‘lure’ (whether of age of not), they are gathering information without consent.  This gathering includes the confrontational videos made by groups.

The PIPA, however places many other obligations on an “organization”.  It must, for instance, put in place a process for persons to register complaints or objections about the collection, use or release of the personal information it possesses.  It must also provide a mechanism to challenge those kind of decisions, and designate an officer for these purposes. The Act sets out strict timelines for response to requests.

What are the Powers of the Commission?

Under the PIPA, the Commission has broad authority to conduct investigations, hold hearings, compel testimony, and make orders including for fines or the destruction of “personal information” in its possession.  Refusing to cooperate or obstructing an investigation can lead to contempt proceedings enforced through the B.C. Supreme Court and other sanctions.

But… How Come Cops can Use “Stings”?

There are specific exemptions under PIPA and at common law to allow for legitimate collection of information in the course of criminal or other investigations.

What are the Penalties for Not Complying?

PIPA provides for fines up to $10,000 for individuals and $100,000 for groups, for every separate breach.  It also provides for civil lawsuits if the Act is breached.  There is also a stand-alone tort of invasion of privacy under the BC Privacy Act.  Under that Act, a claim can be brought even if there is no proof of damage arising from the breach.

So Aren’t I Immune if I have No Money?

You may never have to pay a fine if you never have any money. However, if you are subject to an order that becomes a judgment debt, you may face seizure of your personal assets, including real estate, and garnishing of any bank accounts or wages from your employer.  Bankruptcy can relieve you of some debts, including judgment debts, but does not apply to relieve you of the consequences of deliberate or malicious action. So the short answer is, you might be “immune” for the moment, but five or ten years down the road you might find your bank account empty or your home put up for auction.

By not following and understanding the Provincial and Federal Privacy Acts, you run the risk of ending up in a situation similar to that of Ryan LaForge and the Surrey Creep Catcher outfit.

Office of the Information and Privacy Commissioner (BC)
Order P17-03; Surrey Creep Catcher
https://www.oipc.bc.ca/orders/2060