B’nai Brith Canada claims that a recent court decision is a win for freedom of expression, after a judge dismissed a libel suit against the group, citing Ontario’s relatively new law designed to crack down on strategic lawsuits against public participation, or SLAPP suits.
On June 28, the Ontario Superior Court of Justice dismissed a lawsuit filed by former Green party candidate Dimitri Lascaris, who sued the group for libel after B’nai Brith accused him of “using “social media to advocate on behalf of terrorists who have murdered Israeli citizens.”
B’nai Brith first became aware of Lascaris when he proposed a motion to support BDS, in advance of the Green party’s national convention.
“So we wondered, what was his history of interaction with Israel? What did he know about Israel, if anything?” said Aidan Fishman, national director of B’nai Brith’s League for Human Rights. “So we looked at his social media and we found … he had travelled to Israel and one of the things he did there is he met with this individual, Muhammad Alayan, the father of Bahaa Alayan.”
Bahaa Alayan was a Palestinian man who was killed by Israeli authorities, after he allegedly launched an attack that left three Israeli civilians dead and others injured. His accomplice, Bilal Ghanem, was arrested and convicted of terrorism by an Israeli court.
Lascaris advocated for Israel to return Bahaa Alayan’s body, said his killing was extrajudicial and denied that the man had committed terrorist acts – statements that B’nai Brith took exception to.
“Lascaris said that Bahaa Alayan had been extra-judiciously killed by Israeli authorities and we found it very bizarre and simply morally wrong and reprehensible to say that when a state kills a terrorist who is in the midst of killing and murdering its citizens, that it doesn’t have the authority to kill the terrorist if that’s what’s necessary,” said Fishman.
But Lascaris said that his words are being misrepresented.
“If, in fact, Bahaa Alayan was in the course of killing Israeli civilians when he was shot dead by Israeli police, I don’t criticize them for shooting him dead. I don’t think they don’t have a right to do that. Of course they have a right to do that. If it was necessary to kill him to protect Israeli civilians, then they had every right to do that,” said Lascaris.
Yet Lascaris said he believes that it was not necessary to kill Bahaa Alayan in order to protect innocent lives – a belief he came to after speaking with Muhammad Alayan and reading about the case on a website called The Electronic Intifada.
“When any state, not just Israel, when any state accuses somebody of criminality, I don’t assume that the state’s telling the truth. States lie all the time. Governments lie all the time. History has shown this abundantly,” said Lascaris.
When B’nai Brith published an article on Lascaris and accused him on Twitter of “supporting #terrorists in his desperation to delegitimize the State of #Israel,” he decided to sue for libel.
Lascaris said that Bahaa Alayan had been extra-judiciously killed by Israeli authorities and we found it very bizarre
– Aidan Fishman
Yet the case was dismissed because the court found that B’nai Brith’s comments concerned a matter of public interest and constituted fair comment.
According to the ruling, “the test is whether a person could honestly believe that support for the Alayan family constitutes support for terrorists. The answer is yes. A person who knows that Bahaa Alayan was allegedly involved in a terrorist attack could believe that Mr. Lascaris supported terrorists as a result of his meeting with Mr. Muhammad Alayan and his posts online about the Alayan family.”
B’nai Brith believes this represents an important decision for free expression and human rights in Ontario.
“The decision is critically important because, had we not prevailed, it would have opened the door for enemies of Israel, or enemies of the Jewish people, to shut down Canadian Jewish organizations from expressing their mind on topics related to terrorism, related to anti-Semitism and other matters that are critical to the community,” said Fishman.
“And going even beyond that, it actually would have shut down potentially any human rights organization. That’s why this is a really important decision for us and, we think, for the cause of human rights generally in Ontario.”
Yet Lascaris thinks the opposite is true.
The answer for Mr. Lascaris, or someone else in that situation, is to respond with their opinions and to engage in public debate, instead of litigation.
– Brian MacLeod Rogers
“I think that what the court has done is that it’s effectively legitimized the notion that if you defend the human rights of the Palestinian people, you’re a supporter of terror and that’s very dangerous,” he said.
Ontario introduced its anti-SLAPP legislation in 2015 because defamation laws at the time favoured plaintiffs, which encouraged such lawsuits, said Brian MacLeod Rogers, a media lawyer who also teaches journalism at Ryerson University. Rogers was part of the task force that looked into whether Ontario should adopt anti-SLAPP legislation and what form it should take.
He said that the first step in any analysis under anti-SLAPP legislation is whether the lawsuit involves expression on a matter of public interest, which this one clearly did.
Once that was determined, the anti-SLAPP legislation reverses the common law approach, which puts all the onus on the defence, and moves it to the plaintiff, who must argue that there is no valid defence, said Rogers.
In this case, there was a valid defence: fair comment. Therefore, the judge was able to dismiss Lascaris’s lawsuit.
“On matters of debate, when you’re making comment about things and expressing opinions, you don’t have to prove your opinion is right in the sense that it’s true and evidentiary proof can be offered for it, but rather that it’s an opinion that someone could honestly hold based on the facts that the defendant refers to,” said Rogers.
“In the context, the statement complained of could be viewed as a statement of opinion and one that had some relationship with the facts that were available, and the kind of thing that should be protected opinion.… The answer for Mr. Lascaris, or someone else in that situation, is to respond with their opinions and to engage in public debate, instead of litigation.”
Lascaris said he plans to appeal the decision.