CCLA Intervening in Tik Tok Injunction Appeal to Protect Space for Digital Activism

TikTok teens and duet fiends, take note. The CCLA is intervening in an Ontario court case that will consider the legal limits of digital activism. CCLA has appeared before the Divisional Court to ensure that court orders are not used to stifle online political expression and will be appearing before the Court of Appeal (in the same case) to address the use of civil litigation as a way of discouraging public participation and activism. 

The case stems from the online activism of Brooke Dietrich, a recent university graduate who used her TikTok account to call out an anti-abortion group called 40 Days for Life. The Texas-based organization regularly holds 40-day prayer vigils outside of hospital and abortion facilities. 

After driving past a 40 Days protest in Kitchener, Ontario, Brooke posted a series of videos that encouraged pro-choice TikTok users to engage in creative counter-protests. In some videos – including one that went viral and garnered 300,000+ views – she suggested registering online for 40 Days protests, with no intention of attending. In another TikTok, Brooke highlighted a form of digital advocacy called “shopping cart abandonment,” i.e. filling a virtual shopping cart on the 40 Days online store without completing the purchase, in order to put merchandise temporarily on hold. It does not appear that Brooke’s tactics prevented genuine participants from registering or attending any of 40 Days’ protests. 

In March 2022, the Ontario Superior Court of Justice granted an interim injunction – a temporary court order – forbidding Brooke from engaging in various forms of advocacy. The order prohibited anyone from reposting Brooke’s TikToks, registering for a 40 Days vigil without intending to attend, participating in “sabotage” or “interference” with the group’s business or charitable interests, or encouraging others to engage in the same activities. 

On April 29, 2023 the Divisional Court will considered an appeal of the injunction against Brooke. At the appeal, the CCLA advanced arguments about the scope and appropriateness of injunctions that restrict people from engaging in online protest and counter-protest. Our intervention emphasized that political expression – including online activism – is protected under the Charter of Rights and Freedoms. 

The case was also the subject of anti-SLAPP motion brought by Brooke – she asked the Court to dismiss 40 Days for Life’s case against her on the basis that the interests in allowing her to participate and express herself on important issues of public interest were outweighed by any interests served by allowing the litigation to continue. Brooke lost that motion and appealed to the Ontario Court of Appeal. The CCLA has been granted intervener status and focused its arguments on the nature of protest in online spaces and the need for tort law to evolve in a manner that does not unduly restrict freedom of expression.  

We know that social media platforms are powerful tools for people from all walks of life, especially young people, to express themselves. Social media has allowed activists to build support, call out injustice, organize events, and mobilize people around important issues – from racial justice to the climate crisis to sexual assault and harassment. Amidst the viral dances and duets, TikTok has become a vibrant and accessible forum for political expression and organizing. In recent years, young people have used TikTok as a springboard for clever forms of online protest, such as flooding a Texas anti-abortion website and inciting thousands of false registrations ahead of a Trump rally in Oklahoma. 

Online or offline, the CCLA believes in the freedom to exchange ideas, express opinions, and participate in protest – without fear of unjustified legal consequences. We believe that Canadian courts should avoid imposing orders that could silence criticism or discourage political expression. Ultimately, our courts must uphold the freedom to engage in democratic discussion and debate – in whatever kooky, imaginative, musical, attention-grabbing ways the algorithm serves up. 

You can read CCLA’s factum in the injunction appeal here. 

You can read CCLA’s factum in the anti-SLAPP appeal here.