Canada: John Oliver, Barbara Streisand, And What They Tell Us About Access To Justice

Last Updated: April 10 2018
Article by David Grossman

On June 18, 2017, HBO's popular Last Week Tonight with John Oliver program aired a segment on Murray Energy Corporation, and Robert E. Murray personally, in connection with the coal industry in the United States.

Last Week Tonight is a comedy show in the form of a news magazine, a sort of 60-Minutes-meets-George-Carlin. Oliver's segments tackling issues of contemporary interest are in-depth, and while humorous, they undeniably suggest to the viewer that they are the product of thorough and accurate (if not exhaustive) research.

The segment on Murray Energy and Mr. Murray was critical. There was discussion of a tragic mining incident, which Murray Energy apparently said was caused by an earthquake; Oliver openly questioned whether a natural phenomenon was truly to blame. Oliver also critiqued positions attributed to Murray Energy on matters such as employee health and potential legislative/regulatory protections.

Last Week Tonight contacted Murray Energy in advance of the segment and sought comment. And this is where a strategic decision had to be made: How aggressive should Murray Energy be in trying to dissuade Last Week Tonight from broadcasting a segment casting it in a negative light?

Murray Energy decided to be aggressive. It responded to Last Week Tonight with cease-and-desist letters which, according to HBO's attorneys, threatened "immediate litigation" that would be pursued "to the level of the Supreme Court of the United States".

But instead of ceasing and desisting, Oliver doubled down. He referred to the cease-and-desist letters on air, and noted, "So I have to proceed with caution. I'm not going to say, for instance, that Bob Murray looks like a geriatric Dr. Evil, even though he clearly does." Oliver flashed images of Murray and the fictional character Dr. Evil on-screen, for viewers to compare. He then continued with the segment.

In refusing to back down, Oliver became a hero to many free speech advocates. Because after all, the public danger presented by threats of litigation is not so much the risk of one individual getting sued, but rather the larger social risk of avoiding controversial speech altogether.

Freedom of expression is the lifeblood of democracy. But the higher we make the cost of expression, the less frequently people will exercise it. The "chilling effect" of punitive litigation occurs not because a populous has become indifferent, but because it has become scared into silence – because the costs of speaking out are too great for the average person to take on.

Public indifference comes later, after the chilling effect has removed speech from the public marketplace, after sentiments of outrage are ultimately muted, and when there is nothing left for the general public to do but acquiesce in the status quo.

This dystopia grows from the seeds of what is actually an access to justice problem. Potential defamation defendants see ultimate victory before the courts as too expensive, too uncertain and too distant to justify. The prospect of avoiding all that, and just keeping quiet, is rather attractive indeed.

*           *           *

But there is another side too.

In 2003, Barbara Streisand sued a photographer for violation of privacy, seeking to remove an aerial photo of her home from a publicly available collection documenting coastal erosion. Streisand's lawsuit famously created attention for this photo where none had existed previously – viewed only six times before her lawsuit was filed (including two apparent viewings by her own lawyers), the website hosting the photo was visited by more than 420,000 people in the month thereafter.

The act of unintentionally publicizing information through an attempt to censor it is now colloquially referred to as the Streisand Effect.

Defamation lawyers have known about the Streisand Effect since well before 2003. It is one of the basic cost-benefit analyses that need to be undertaken before a defamation action is instituted: Does the plaintiff risk the reputational fallout from the very act of seeking the Court's assistance to protect her reputation? Or is the risk of such fallout so great that the victim of defamatory speech has no realistic option other than to sit back, and hope the public turns its attention away before long?

Framed as such, in defamation cases, the Streisand Effect poses a very real access to justice problem to plaintiffs. People truly wronged by faulty and injurious statements are effectively left without a viable recourse if their only juridical move risks further reputational injury.

*           *           *

Defamation cases thus present an interesting scenario where social and legal forces conspire to present potential access to justice problems for both parties. And yet, even with these forces pushing parties towards out-of-court resolution, there is no dearth of defamation litigation in the courts.

The case of John Oliver and Murray Energy found its way to the courts too. Murray Energy (and related parties) sued HBO and Oliver (as well as others involved in the segment) shortly after the Last Week Tonight air-date.

Commenting on the lawsuit, the Hollywood Reporter observed that Murray Energy has a history of being "legally aggressive against media companies". Over time, such an aggressive posture seems to shift a plaintiff's cost-benefit ratio: once the initial reputational risk of litigation has been taken, the additional risk presented by subsequent litigations levels off.

This dynamic gives rise to the phenomenon of serial defamation litigators, who seem to be unable to accept even the most basic critique, and rush to the courts to "set the record straight" whenever they feel slighted. Arguably these serial plaintiffs are the ones who pose the greatest threat to freedom of speech at the societal level.

In fact, this was a narrative picked up by the HBO parties in their memorandum in support of their motion to dismiss, which states:

This case is just the latest example of Murray and Murray Energy's well-documented practice of using "punitive litigation designed to chill constitutionally protected speech" in an attempt to intimidate and silence critics. In the past few years alone, Plaintiffs have lost several similar lawsuits against the media on the pleadings. This litigation campaign is so baseless, and so extraordinary, that it recently led the Ohio Court of Appeals to call for that state's legislature to pass legislation that would force plaintiffs like Murray to "pay the attorney fees of successful defendants." This case is part of a pattern of frivolous litigation, and it should be dismissed. [Citations omitted]

On February 21, 2018, by way of brief letter, Judge Jeffrey Cramer announced he would grant the motion to dismiss from John Oliver et al. The Plaintiffs have announced their intention to appeal.

*           *           *

The balance between the right to reputation and the right to free expression is the backdrop to virtually all contested defamation cases.

Québec has approached this delicate balance through the concept of "reasonableness" – the cornerstone of its general civil liability regime. Basically: a speaker acting reasonably will be protected; a speaker acting unreasonably can be held liable.

On this legal bedrock, the legislature has added further protections for speakers, in recognition that simply getting to trial to defend one's statements usually involves a cost that many speakers would never be willing to take. Thus, a strategic defamation lawsuit taken abusively in order to chill speech can be dismissed summarily.

The practical problem always arises, however, when it comes time to distinguish the "abusive" from the "reasonable", the attempts to chill speech from the attempts to protect reputation. Murray Energy's lawyers tried to convince the Court that they were the latter, explaining the motivation behind its lawsuit in these sympathetic terms:

On June 18, 2017, Defendants executed a meticulously planned attempt to assassinate the character and reputation of Mr. Robert E. Murray and his companies, including Murray Energy Corporation and those in West Virginia, on a world stage. They did so for their personal financial gain by knowingly broadcasting false, injurious, and defamatory comments to HBO's approximately 134 million paying subscribers, while also knowing that their malicious broadcast would be repeated to countless more individuals through various outlets (including other media owned by certain Defendants).

They did this to a man who needs a lung transplant, a man who does not expect to live to see the end of this case. They attacked him in a forum in which he had no opportunity to defend himself, and so he has brought this suit to try to set the record straight.

While Murray Energy's arguments were not retained (at least at first instance), they reveal the difficulty in identifying which defamation lawsuits deserve to survive through trial. Absent full proof, what can we use as an indicator to glean the legitimacy of a defamation suit?

Though there is no absolute answer, one question that may be worth posing is this:

  • Has the plaintiff shown a willingness to accept criticism and participate in the marketplace of ideas, or has (s)he shown a desire to shut down debate any time it becomes critical?

Yes, it is possible that serial plaintiffs may be serial victims that truly deserve repeated compensation. But it is also possible – perhaps likely – that such a plaintiff misunderstands the placement of the line that needs to be crossed in order to truly justify litigious action.

Everyone has been the victim of criticism at some point or another. The courts do not exist to sort out the fairness and unfairness of everyday slights, or to protect individuals from everyday critiques. A plaintiff that does not seem to accept this basic democratic bargain, and who chases down every critical comment in the courts, will present as far less sympathetic, and rightly so.

Indeed, such a plaintiff may see its litigation defeated at an early stage, well before trial, in the name of free speech. At least that's what happened to Murray Energy. Appeal pending.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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