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.

Citizens Arrest – What You Need To Know

What You Need to Know About Making a Citizen’s Arrest

Whenever possible, you should report wrongdoing to the police instead of taking action on your own. Police officers are equipped with the proper intervention tools and trained to deal with incidents which may escalate to become violent.

Important Considerations

Making a citizen’s arrest without carefully considering the risk factors may have serious unintended consequences for you and others involved. In most cases, an arrest consists of either actually seizing or touching a person’s body in an effort to detain them.

Before deciding whether to make a citizen’s arrest, you should be aware of the Citizen’s Arrest Laws and consider the following:

  • Is it feasible for a peace officer to intervene? If so, report the crime to the police instead of taking action on your own.
  • Your personal safety and that of others could be compromised by attempting an arrest. Relevant considerations would include whether the suspect is alone and whether they possess a weapon.
  • Will you be able to turn over the suspect to the police without delay once an arrest is made?
  • Do you have a reasonable belief regarding the suspect’s criminal conduct?

Making a Citizen’s Arrest

If you do decide to make a citizen’s arrest, you should:

  • Tell the suspect plainly that you are making a citizen’s arrest and that you are holding him or her until police arrive.
  • Call the police.
  • Ask explicitly for his or her cooperation until police arrive.
  • Avoid using force, if at all possible, and use it to the minimum possible otherwise.
  • Do not question or search the suspect or his or her possessions. Your purpose is only to temporarily detain him or her until police arrive.
  • When police arrive, state the plain facts of what happened.

Citizen’s Arrest Laws

In most cases, you must find a person either in the act of committing a crime, or escaping from and freshly pursued by persons who have lawful authority to arrest that person, in order to lawfully make a citizen’s arrest. In particular, if you are arresting a person for an indictable offence, which is the most serious type of offence and includes violent offences, you can only make the arrest at the time you witness the person committing the offence. It is against the law to arrest a person after any lapse in time for having committed an indictable offence, unless it is relation to your property.

In special circumstances of any type of criminal offence that is committed on or in relation to your property, you may either:

  • arrest a person you find in the act of committing a crime; or
  • arrest a person within a reasonable period of time after having found that person committing a crime.

To be eligible to make a citizen’s arrest for a crime on or in relation to property, you must be one of the following:

  • the owner of the property;
  • in lawful possession of the property; or
  • have been authorized by the owner or the person in lawful possession of the property.

The law allows you to use as much force as is necessary for the purpose of making a citizen’s arrest, as long as you are acting on reasonable grounds. However, any force you use must be tailored to the circumstances, and you are criminally responsible for any excess force you use. In addition to the potential for a criminal prosecution, you may also face a civil lawsuit in relation to your conduct and any injury you cause.

The law requires that when making a citizen’s arrest, the arrested individual must be delivered to a police officer without delay. If you make a citizen’s arrest and do not call the police as soon as possible, the arrest might be ruled illegal, and you could face civil or criminal consequences.

Correctly identifying a suspect

In the special circumstances of making an arrest “within a reasonable time after” observing an offence (as opposed to while the offence is in progress), you are strongly urged to exercise additional care in confirming the identity of the suspect.

It is always extremely important to correctly identify a suspect and their criminal involvement. If you make a citizen’s arrest at the very time a person is found committing a crime, the correct identification of the suspect will not likely be called into question.

However, if you make an arrest “within a reasonable time after” observing the offence, the accuracy of the identification of the suspect may be called into question.

You need to be conscious of the fact that situational factors such as the presence of a weapon, the number of individuals involved, environmental factors and heightened stress levels can negatively affect your recollection of a past incident and your ability to correctly identify a person you have previously seen committing an offence. Even if you genuinely believe that you have correctly identified the suspect after the crime was observed, the risk of mistaken identity is real, and must not be minimized.

If the person you attempt to arrest is the wrong person, the situation is potentially very dangerous. The person being arrested will not understand why they are being detained and may not submit to the arrest. In these circumstances, there is a real risk that if you arrest the wrong person, you could provoke a violent confrontation, and risk injury or death.

Warning

A citizen’s arrest is a very serious and potentially dangerous undertaking. Unlike a police officer, private citizens are neither tasked with the duty to preserve and maintain public peace, nor properly trained to apprehend suspected criminals. Exercise extreme caution when attempting to make a citizen’s arrest.

 

Copied from the Department of Justice (Canada) Website:
http://www.justice.gc.ca/eng/rp-pr/other-autre/wyntk.html