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B.C. Court Awards Damages and Permanent Injunction in Cyberlibel Lawsuit
In WeGo Kayaking Ltd. v. Sewid et al., the plaintiffs sought a permanent injunction along with damages and costs against the defendants for ongoing libelous remarks. Although each defendant filed a defence and was properly served with the plaintiffs’ Notice of Motion, neither appeared for the hearing.
The plaintiffs, Northern Lights Expeditions Ltd. and WeGo Kayaking Ltd., are adventure companies that operate kayak tours off the west coast of British Columbia. The defendant, Thomas Sewid, operated a tour and water taxi business in the same area.
The action arose from website content titled a “Kayak Companies Review” that the defendants published on a website advertising Mr. Sewid’s services. The review, which listed good and bad kayak companies in the area, stated that bad kayak companies are ones that “have done things to try and make First Nations become token Indians who are only needed as items of attraction or convenience.” The plaintiffs were listed as one of the bad kayak companies and Mr. Sewid’s name appeared at the bottom of the review.
Mr. Sewid’s views of WeGo Kayaking were also published in a local newspaper in May 2005. He subsequently retracted his statement and provided an apology indicating that his remarks were factually incorrect.
As a result of the defendants’ website, which had one of the top search engine rankings for potential visitors looking for information on sea kayak tours off the west coast of B.C., the plaintiffs experienced significant reduction in customer Internet bookings and consequently net profit.
At the hearing, Metzger J. was satisfied that the other defendant, Kathleen Westergaard, who operated the Village Island website, and continually published Mr. Sewid’s opinions, was his partner. In his analysis, Metzger J. reiterated that:
- [a]n action for defamation requires the court to balance the competing principles of freedom of expression and the protection of reputation;
- [a] publication that tends to lower a person’s reputation in the estimation of reasonable persons, or to expose a person to hatred, ridicule or contempt is defamatory; and that
- [i]n an action for libel, the plaintiff must prove that the impugned statements are defamatory. The plaintiff need not prove that the statements resulted in actual loss; damage is presumed.
Metzger J. went on to conclude that in this case the words are defamatory in the ordinary meaning. The statements wherein the plaintiffs were labeled as Bad Kayak Companies, “imply that the plaintiffs do not respect First Nations persons and culture, and have environmentally unsound business practices.” In finding that an injunction was justified in this case, the court concluded that the plaintiffs would suffer irreparable harm if an injunction were not granted. Moreover, loss of goodwill might never be recovered, nor adequately compensated by damages.
In awarding each plaintiff $60,000 for general damages, Metzger J. stated that the assessment of damages flows from the circumstances of the particular case, and in assessing damages the following factors should be considered, namely, “the plaintiff’s conduct, position and standing; the nature of the libel; the mode and extent of publication; the absence of any apology or retraction; and the defendant’s conduct from the time of publication to the end of trial.”
For a copy of the decision, visit: