The Ontario Court of Appeal’s Aug. 2 decision in the case 40 Days for Life v. Dietrich struck a delicate balance between freedom of speech and the protection of individuals from harassment and harm when expressing their views. This case involved Brooke Dietrich, a pro-choice advocate, and the group 40 Days for Life, which advocates against abortion.
Dietrich used TikTok to post videos criticizing 40 Days for Life, encouraging viewers to sign up for their vigils but not attend. She accused the group of spreading misinformation and harassment, and shared the personal contact information of two employees, resulting in harassing phone calls and online abuse.
In response, 40 Days for Life sued Dietrich for defamation, internet harassment, fraud, and conspiracy. Dietrich sought to have the case dismissed under Ontario’s Courts of Justice Act, asserting that her actions were protected by the right to free speech and claiming that the pro-life group sought to silence her criticism.
The motion judge dismissed Dietrich’s request, determining that 40 Days for Life’s claims had substantial merit and that she had no valid defence. The court recognized the public interest in protecting Dietrich’s expression but emphasized that her intention was not merely to send a message but to interfere with the group’s operations. The court stated: “The primary purpose of 40 Days commencing its action does not appear to be to silence Ms. Dietrich or the other Defendants on their pro-choice views. Rather, the main motivation of 40 Days appears to be to protect its ability to organize its prayer vigils without undue disruption.”
The Ontario Court of Appeal upheld the lower court’s decision, reiterating that the right to free speech is not absolute and can be limited when it causes significant harm. The court emphasized that Dietrich had moved beyond simply expressing her views on abortion; she actively encouraged others to disrupt 40 Days for Life’s activities. They saw nothing out of place with the motion judge’s remark, “While Ms. Dietrich’s motivation for expressing herself through the impugned TikTok videos may have started out as part of the debate on whether anti-abortion protesting should be permitted near hospitals providing abortion services, some of her efforts became more focused on actively disrupting and impeding 40 Days in its anti-abortion activities. I do not find that there is significant public interest in protecting that kind of expression.”
- How do we balance the right to free speech with the right to be free from harassment and harm? The court highlighted the challenge of protecting individual expression while safeguarding individuals from harassment, stating that freedom of speech can be limited when it causes harm.
- What role does intent play in determining whether speech is protected? The court noted that Dietrich’s intention was to interfere with the activities of 40 Days for Life, underscoring the need to consider speakers’ intent when evaluating protected speech in online contexts.
- How do we legally define and address “cyberbullying” and “digital harassment”? The court’s recognition of “predominant purpose conspiracy” suggests a serious approach to online harassment that is increasingly relevant.
- How can we ensure the legal framework for free speech keeps pace with evolving digital landscapes? The rapid evolution of online communication poses challenges for legal frameworks traditionally designed for offline speech. This case shows that definitions of “harassment” and “conspiracy” need updating to address digital harm effectively.
However, the defendant’s actions transcended mere expression—they constituted harassment under the law. One has to account for the unique challenges of online speech. For example, online expressions can reach a global audience instantly, and sharing personal contact information for harassment complicates the removal of harmful content.
The insistence on equating online and offline speech overlooks legitimate concerns for individuals or organizations that may suffer from online harm such as defamation and harassment. Furthermore, the potential for online speech to undermine democratic processes through misinformation necessitates a more nuanced legal framework.
The 40 Days for Life v. Dietrich case encapsulates the complexities of free speech in the digital age. While freedom of speech is crucial to democracy, it must be exercised responsibly, considering its impacts. The court’s ruling affirms that while free speech is fundamental, it is not absolute and must be balanced against other essential rights.
