On February 5, a trial court in British Columbia awarded $50,000 CAD (roughly $40,000 USD in current exchange rates) to distinguished climate scientist Dr. Andrew Weaver, finding that a collection of articles had defamed him. The judgment is controlling authority only within British Columbia, but it is still significant: the decision makes clear that smear campaigns against scientists based on untruthful and fraudulent claims are not legally defensible, at least under Canadian law.
Dr. Weaver brought the lawsuit after Canada’s National Post refused to retract the articles that, in his own words, “attributed to me statements I never made, accused me of things I never did, and attacked me for views I never held.” In particular, four articles published in the National Post in 2009 and 2010 claimed that Dr. Weaver fabricated stories to distract from the so-called “Climategate” incident, including that he had concocted tales that fossil-fuel industry agents were behind break-ins in his faculty office; that he had manipulated and distorted scientific data to mislead the public and promote a public agenda; that he had corruptly received government funding to further his biased research; and that he was generally unscientific and incompetent, among other accusations. The articles also referred to Dr. Weaver variously as an “alarmist,” “sensationalist,” and “Canada’s warmest spinner-in-chief” who “cherry-picked data” and was an “insider” for the Intergovernmental Panel on Climate Change (IPCC), which itself was accused of “cooking the books.”
The court found that the articles went beyond the “debate [of] the merits of a theory” and acted instead to “impugn a person’s character with innuendos concerning honesty, ethics and competence.” The articles “implie[d] a serious defect in character that impacts Dr. Weaver’s academic and professional world” and the court noted that “Dr. Weaver was deeply affected by what he perceived as a barrage of articles impugning his integrity and academic reputation.”
The defendants (the National Post, its publisher, and the relevant authors) argued that these articles were protected by the defense of fair comment which, under Canadian law, shields even defamatory statements if they are made on a matter of public interest, based on fact and made honestly, and made without malice. The court acknowledged that these articles were on matters of public interest, and “[w]hile some of these references may be characterized as simply derogatory. . . the factual foundation to the four articles was distorted or false” in numerous ways. For example, the court found that while Dr. Weaver had made comments regarding the fossil fuel industry in the context of an interview regarding the “war for public opinion,” he had never linked the fossil fuel industry to office break-ins at the University of Victoria, as several of the articles had claimed. The articles also falsely claimed that Dr. Weaver was trying to dissociate himself from the IPCC, and misquoted Dr. Weaver to falsely claim that he incorrectly conflated individual weather events with global warming trends. Ultimately, the court found that the “selection of the words, the tone and misstatement of central facts distorted Dr. Weaver’s words such that the articles were defamatory and not protected by the fair comment defense.”
These articles were widely published, including being “reproduced many times over the Internet,” from blogs to electronic databases, and each article contained an “invitation to email the article to a friend.” In addition, the publication of these articles followed several incidents where Dr. Weaver had been misquoted in the National Post years earlier, and where he had previously worked with two of the defendants to correct the misinformation. Thus, this time around, these defendants specifically “knew about Dr. Weaver’s cautious views. . . and ignored them in the pertinent articles.” And in contrast with the earlier misquotes where Dr. Weaver had succeeded in getting the National Post to publish corrections, the defendants had also refused to remove the offending articles or publish any retractions or apologies, despite Dr. Weaver’s pre-litigation efforts to correct the record here.
The court concluded that “the defamation in this case was serious.” Quoting from the Supreme Court of Canada, the court wrote that free speech did not permit individuals to become “regrettable but unavoidable road kill on the highway of public controversy.” In addition to awarding Dr. Weaver $50,000 in damages from all defendants, jointly and severally, the court directed defendants to remove the articles from any websites over which they had control, to expressly withdraw any consent for third party publications and require these third parties to remove the articles, and to publish a complete retraction of the defamatory material. The National Post is considering whether or not to appeal the decision.
The court did make clear to distinguish the defamatory content in the articles in question from non-defamatory commentary regarding any debate over climate change: “[w]hether or not a particular theory is ‘debunked’ is regularly debated in the scientific community. It would, in my view, impede the necessary debate to find such commentary defamatory in the circumstances of this case.” The court also found that the defendants could not be held liable for defamatory reader comments because they had removed them within a day or two of being alerted to the offensive comments and “that is all the defendants could realistically do in the circumstances.”
While this decision is not controlling authority outside of British Columbia, as mentioned above, it may prove to be influential in a similar defamation case that is currently working its way through the U.S. courts. In 2012, Dr. Michael Mann filed a defamation suit, Mann v. National Review, Inc., over a National Review Online blog post by Mark Steyn. The post claimed Dr. Mann’s work was “fraudulent” and, using quotes from another blog post, called Dr. Mann – a climate scientist at Penn State University – “the Jerry Sandusky of climate science” because “he has molested and tortured data.”
In January 2014, the D.C. trial court in the Mann case ruled that “[o]pinions and rhetorical hyperbole are protected speech under the First Amendment,” but “[a]ccusing a scientist of conducting his research fraudulently, manipulating his data to achieve a predetermined or political outcome, or purposefully distorting the scientific truth” are defamatory if proven to be false. The court denied the defendants’ motion to dismiss, allowing the case to move forward towards a trial. Three of the defendants have appealed this decision.
Protecting against defamation while also protecting free speech rights is a complex balance, and it remains to be seen if the D.C. trial court will go the same way as the decision in Weaver. But either way, widely accusing peer-reviewed work to be products of fraud and comparing climate scientists to child molesters is, unfortunately, part of a larger trend of attacks on scientists. In the words of Dr. Mann, these attacks seek “to dismiss, obscure, and misrepresent well-established science and its implications” as well as “create an atmosphere of intimidation.” For more information on attacks on scientists, please visit http://climatesciencedefensefund.org
Lauren Kurtz is the Executive Director of the Climate Science Legal Defense Fund, which previously assisted with the representation of Dr. Mann in a separate dispute over open records requests, although it is not involved in Dr. Mann’s defamation litigation described above.
 It is also generally harder to prove defamation in the United States than in Canada: http://kellywarnerlaw.com/chart-differences-between-united-states-and-canadian-defamation-law/
 For more on that case, see here: http://www.washingtonpost.com/blogs/local/wp/2014/04/17/va-supreme-court-rules-for-u-va-in-global-warming-foia-case/