A panel of Ontario Court of Appeal judges ruled Aug. 7 that the Christian pro-life group 40 Days for Life may sue parties conducting digital activism designed to impede their prayer vigils.

Now that the court has denied an appeal to dismiss, 40 Days for Life may proceed with its lawsuit against Brooke Dietrich, which includes charges of internet harassment, defamation and civil conspiracy.

Justice Bradley Miller, who wrote the decision, stated “a free and democratic society is one that is committed to permitting everyone to speak what they understand to be the truth about the most profound questions of being and flourishing and to advocate for laws and policies that reflect this.”

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In an email, Phil Horgan, legal counsel for 40 Days for Life, informed The Catholic Register that his client is “pleased with the outcome.” He added that this lawsuit was filed by 40 Days for Life to “protect itself and its volunteers against disruption, sabotage and harassment. This was never strategic litigation against public participation (SLAPP).”

Fourteen videos posted to TikTok by Dietrich, described by the court as “a person with a history of engagement in social justice issues, who strongly believes in protecting access to abortion,” during October 2021 is the central focus of this litigation.

In four videos, Dietrich encouraged her followers to sign up for various 40 Days for Life vigils but then did not show up on the day. Seven of the videos were categorized as defamatory as she blasted the Christian group for spreading “false health information” and espousing “fearmongering” and “harassment.” In two other videos, Dietrich posted the contact information of two 40 Days for Life employees, and the final one was her call for people to abandon virtual shopping carts of merchandise on the organization’s website.

40 Days asserted that Dietrich’s activities did disrupt its website and prayer vigils, and employees and volunteers were harassed online and via phone calls.

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Miller wrote that Dietrich argued her activism was about “sending a message” to 40 Days for Life that the group does not enjoy community support. She also claimed, "what is really going on in this litigation is that a well‑funded adversary is using litigation to silence a young graduate student who successfully used TikTok to counter-protest its activities.”

Suggesting that if Dietrich had only created defamation videos against 40 Days for Life, “the weighing of the value of her expression may well have been different,” wrote Miller. However, “several of her videos encouraged others to interfere with 40 Days’ activities and vigils. This is qualitatively different from counter-speech.”

In paragraph 86 of the ruling, Miller wrote that “40 Days did not take issue with Ms. Dietrich’s pro-choice expression or her stance against abortion protests at hospitals — it only raised concerns with the obstruction of its own operations.”

The court decision was welcome news to Campaign Life Coalition, the political arm of the pro-life movement in Canada. The organization orchestrates over a dozen vigils across the country semi-annually.

“This is a big win for pro-life advocates who simply want to be a voice in the public square for those who have no voice — namely the preborn targeted for abortion,” said Jeff Gunnarson, national president of Campaign Life. “Those who want to disrupt pro-life prayer vigils, demonstrations and rallies had now better think twice.”

Gunnarson added the organization already has its usual number of 40 Days for Life vigils planned to start in September, but this victory may encourage the group to add a few more prayerful gatherings to the schedule.  

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Horgan suggested the “broader implication” of this case “is the court's confirmation that online attacks orchestrated through social media can be remedied through civil litigation. This is important in our digital age to all sorts of businesses, organizations and individuals who may attract controversy.”

Read the entire decision at https://coadecisions.ontariocourts.ca/coa/coa/en/item/22581/index.do.