Commentary
The recent decision by the Ontario Court of Appeal in the case of 40 Days for Life v. Dietrich highlighted the delicate balance between freedom of speech and protecting individuals from harassment. This particular case involved Brooke Dietrich, a pro-choice advocate, and the group 40 Days for Life, which advocates against abortion.
Dietrich utilized TikTok to post videos criticizing 40 Days for Life, urging viewers to sign up for their vigils but not actually attend. She accused the group of spreading misinformation and engaging in harassment, even sharing personal contact information of two employees which resulted in harassing phone calls and online abuse.
In response, 40 Days for Life filed a lawsuit against Dietrich for defamation, internet harassment, fraud, and conspiracy. Dietrich attempted to have the case dismissed under Ontario’s Courts of Justice Act, arguing that her actions were protected by the right to free speech and claiming that the pro-life group was attempting to silence her criticism.
The motion judge denied Dietrich’s request, finding that 40 Days for Life’s claims had merit and that she lacked a valid defense. The court acknowledged the importance of protecting Dietrich’s expression but noted that her intent was not simply to convey a message, but to disrupt 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 freedom of speech is not absolute and can be restricted when it causes significant harm. The court emphasized that Dietrich had gone beyond expressing her views on abortion; she actively encouraged others to disrupt 40 Days for Life’s activities. They agreed with the motion judge’s statement, “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.”
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