Home > Journalists in the news, Legal > Bowen Island Undercurrent found guilty of libel, must pay $35,100

Bowen Island Undercurrent found guilty of libel, must pay $35,100

January 3, 2013

A man who was wrongly identified online as a sex offender by the Bowen Island Undercurrent was awarded $35,100 by a Supreme Court justice in late December.

You should probably read the full decision.

In a nutshell, a Bowen Island man, Simon James Sr., was found guilty of sexually touching a minor.
The Undercurrent, though, mistakenly used a file photo of the man’s son, Simon James Jr.

Hence the libel.

On the bright side, the print run of the paper was halted and not distributed. And the web version was quickly taken down, with only about 500 people having viewed the online version.

Kelly McManus wrote the story, while Justin Beddall was the editor.

In his judgement, Justice Sewell rules:

“In this case I have already decided that the publication was on a matter of public interest. However, in my opinion the publication of the plaintiff’s photograph was not an essential part of the report on the criminal proceeding in question. Publication of the Article without the photograph would have adequately informed the public of the matters addressed in the Article. In saying this, I should not be taken to be second guessing the editorial decision to publish a photograph. I do however think that this factor also called for a very high degree of diligence with respect to the accuracy of the photograph that was published.

“In this case the status of the source of the information was in one sense highly reliable. Mr. Beddall relied on information provided by Ms. McManus and Ms. Wait, both reliable sources. However, the principal difficulty I have is with the quality of the information that led to the publication. On the facts I have found no one ever identified Mr. James as the person who was convicted of the offence. The only person involved who had observed Simon James Sr., the person convicted, was Ms. McManus. However, Ms. McManus did not positively identify the plaintiff as that person. Her evidence went no farther than to say that the person in the photograph looked like the person convicted.


There was ample time for the defendants to confirm the true facts. Ms. Wait provided the photograph to Mr. Beddall some days before the Article was posted. It is of course obvious that if confirmation had been sought, Mr. James would have been able to provide the correct information.


“I am of the view that the conduct of Black Press prior to publication, while falling short of bad faith, is an aggravating factor. I have tried to avoid applying hindsight in assessing that conduct. However, I am satisfied that the way in which Mr. Beddall went about trying to verify that the photograph was in fact a photograph of the person convicted fell far short of the due diligence required in the circumstances. Despite this, the defendants denied liability and put the plaintiff to the expense of rebutting the defence of responsible communication.

“There is also no question that the plaintiff has been deeply emotionally affected by the publication of the libel. He removed the Raven Tales decals from his car, which was the one depicted in the photograph complained of this case. He has had difficulty in coping with his personal reaction to the publication.

“On the other hand there are also mitigating factors. The defendants moved very quickly to remove the libel from the Undercurrent web site once it was brought to their attention. Black Press ensured that the press run of the print version of the Undercurrent was held back until the Article could be altered to the satisfaction of the plaintiff’s counsel. The defendants made a timely offer to publish a retraction and apology that was not taken up by plaintiff’s counsel.

“I am also satisfied that Black Press took all reasonable steps to locate and remove cached versions of the Article from the World Wide Web. In this regard they cooperated with the plaintiff in diligently following up on all cached versions located and identified by his counsel.

“As a result it is clear that only a relatively small number of persons actually saw the libel and in all probability even fewer saw it without knowing that Mr. James’ picture had been posted in error. There was considerable evidence presented as to how often the site was viewed. I need not refer to it in detail. I am satisfied that less than 500 persons saw the offending material.

“Fortunately, there is no evidence that Mr. James’ career has been adversely affected by the publication. He has been invited to participate in community events involving children since the incident.

“I conclude that this is a case that calls for an award of significant damages, mitigated by the above factors.

“I have considered the cases on mistaken identity referred to by the defendants. In my view this is a more serious case than one of simple mistaken identity. In this case the Article and headline were intended to refer to Mr. James. They described him in some detail. The statements were made about him. In the cases referred to by the defendants, the error would have been obvious to anyone who knew the plaintiff. That would not be the case here because the captioned words do identify Mr. James.

“Taking all of the circumstances into account, I assess general damages in the amount of $35,000.

“I also award the plaintiff special damages of $100, being the cost of removing the Raven Tales decals from his car.

“The plaintiff is entitled to his costs of the action on scale B, but subject to the parties having liberty to apply with respect to costs.

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