Cooper Creek Cedar, a logging company, had sought information about forest defenders' use of social media.
Originally published in the Valley Voice under the Local Journalism Initiative. Photos by Louis Bockner.
Forest defenders blocked a road leading to the Argenta Face in May 2022
A BRITISH COLUMBIA SUPREME COURT JUDGE has rejected a logging company’s request for a court order allowing them to probe into the social media activities of members of a Kootenay environmental group.
Madam Justice Lindsay Lyster released her decision in favour of Last Stand West Kootenay (LSWK) last week, saying granting the request (for a legal instrument called a ‘Norwich order’) by Cooper Creek Cedar would “not be in the interests of justice” and would suppress legitimate, peaceful protest.
“In my view, granting a Norwich order to require the third parties to disclose information about LSWK would have a chilling effect on LSWK and others engaging in expressive and associational activities in support of their political and social aims,” Lyster wrote in her March 27 judgement.
The company said the social media activities of the protestors – including encouraging people to go to a protest camp near the logging site, and asking for donations to support the cause – constituted real harm to the company.
The company said it needed the names and contact information of six particular protest supporters, including their log-in information, when they registered their accounts, and the dates and times of their last 300 log-ins.
Case not proven
Norwich orders are normally used to compel third-party companies – a bank, social media site like Facebook or domain-registration company – to release identifying information to an aggrieved party.
But Lyster pointed out such orders are usually granted in cases of serious fraud or online defamation – when there are real issues with anonymous wrongdoers and concerns money could be unrecoverable without the information.
She said Cooper Creek Cedar hadn’t proved they needed the order to do that.
“I find that the third parties are not the only practical source of information,” she wrote in her decision. “LSWK had an email address; Cooper Creek used that email address to send LSWK a copy of the injunction. There is no evidence that Cooper Creek has sought any information directly from LSWK about its posts, or who is associated with LSWK.
“Rather than seek information directly from LSWK or these individuals, or amend its notice of civil claim to name the individuals and use the normal discovery processes, Cooper Creek has resorted to the rare and unusual remedy of a Norwich order.”
Lyster doesn’t reject outright Cooper Creek Cedar’s claim that some of the protestors may have caused the company harm, or that there may have been a breach of an earlier injunction. But she called many of the claims unclear, and was “skeptical” the social media posts of the named defendants constituted wrongdoing. Even if that was the case, she ruled the logging company just didn’t need a Norwich order to achieve its aims.
“It is incumbent on a party seeking a Norwich order to obtain information of the kind sought by Cooper Creek to exhaust other available means of obtaining the information sought before asking the court to make a Norwich order,” the judge wrote.
Further, Lyster said the majority of Last Stand West Kootenay’s posts were exhorting people to support their protest and engage in peaceful, legal actions to protect the forest and aboriginal rights.
“Most of LSWK’s posts are not evidence of any sort of unlawful activity. It is lawful to engage in peaceful protest, to write letters to politicians about matters of social concern, to sign petitions, to hold potlucks and dances and other events to raise awareness, and to raise money to pay for legal fees, food and tents,” she ruled. “Those activities are the lifeblood of democratic engagement, not the stuff of tortious interference, or breach of the Injunction.”
Lyster said the heavy hand of a Norwich order would discourage such protest from occurring. “Considered in light of the fact that a Norwich order is not the only practical means for Cooper Creek to obtain the information it seeks about potentially unlawful activities, it would not be in the interests of justice to grant the Norwich order sought in relation to LSWK,” she concluded. “…For the reasons given, I dismiss Cooper Creek’s application for Norwich orders in its entirety.”
The lawyer defending Last Stand West Kootenay over the Argenta Face protests hailed the decision.
“This is an exciting decision for Last Stand West Kootenay and other anonymous groups supporting lawful civil disobedience,” says Noah Ross. “…This is the first time a corporation has tried to get a Norwich order to find the identity of operators of civil society groups. Madam Justice Lyster's decision indicates that groups such as LSWK can continue to operate anonymously without consequences unless they promote illegal activity on their social media accounts.”
Meanwhile, 17 members and supporters of LSWK still face legal consequences after a police raid on the protestor’s camp on a logging road leading to the Argenta Face in May 2022. Protesters first appeared in court on breach-of-injunction charges last summer, but the case has not proceeded since that time.
Cooper Creek said in August it planned to ask the Crown to lay criminal contempt charges against the protestors, instead of the company pursuing civil contempt remedies. But the case has not moved forward since last summer.
There have been no further protests at the logging site since June of last year.