Can Jason Blaha assert that Layne Norton is a fake natural?

He can if that is his honest opinion and it is based on facts.  However, there is a difference between an assertion (claiming something is true) and a fact (something which is indisputable).  The most compelling and easily examined facts Jason gives his viewers (whether they were about Layne or Lame) to support of his opinion were;

a)      Layne has lifts that are superior to power lifters in a non drug tested federation.

The British Drug Free Power Lifting Association all time records in the 100 kilo / 220 lbs category are 273 k / 600 lbs squat, 215 k / 473 lbs bench and 310 k / 682 lbs deadlift (1).  Layne Norton’s best lifts in the 100 lbs / 220 k class are 280 k / 617 lbs squat, 175 k / 386 lbs bench, and a 318 k / 700 lbs deadlift.  However, as his best total is 1680 lbs those lifts were not at the same meet (2).  

Layne’s squat and deadlift are marginally better than the records of the BDFPA.  His bench does not rival the record.  At the competition BDFPLA meet on the 6^th and 7^th April 2013 there were only eight competitors in what would have been Layne’s category (3).  It’s only a small federation and not a reasonable depiction of what might be attainable by a natural athlete from a broader selection. 

b)      Layne carries more muscle than is humanly possible.

The Fat Free Mass Index score for a 195 lbs (2), 5’10” (4) man at 5% body fat is 26.8 (5).  Body fat is assumed, it may be higher or lower.  The average post steroid era FFMI was 25.4.  Arguably training knowledge and practice has improved since then and there is a larger resistance training community.  Other contestants in the IFPA and NPA have a similar score to Layne Norton.

It appears that Jason’s purported facts are not indisputable and therefore not facts upon which he could base an opinion honest or not, certainly not in this connection.  Layne’s strength is commensurate with the best a relatively small natural power lifting Association has to offer; it does not exceed that.  Layne’s fat free mass may be high, but his score is consistent with his fellow competitors and only marginally higher than the average post steroid era bodybuilder.  In neither case is Layne’s strength or size appear to beyond the scope of that which might be attainable naturally by a genetically gifted athlete.

References

 1)      http://www.bdfpa.co.uk/records/GBRMUP.pdf

2)      http://www.biolayne.com/about/

3)      http://www.bdfpa.co.uk/results/2013/Brit%20FP%202013.pdf

4)      http://www.bodybuilding.com/fun/layne.htm

5)      http://www.naturalphysiques.com/28/fat-free-mass-index-ffmi

Who Knew?

This exert is taken from the penultimate paragraph of the section headed, “Factors relevant to damages”, in Layne Norton’s Letter of Claim, 8^th August 2013.

“The publications complained of suffer the dual vices of publicly ridiculing and demeaning our client while simultaneously making allegations of the utmost seriousness against him directly to an audience who is not only aware of who our client is, but is the audience to whom our client’s professional reputation is most significant, namely the body building and powerlifting community”.

However, the possible impact appears to be significantly less than claimed.  The viewing demographic of Ice Cream Fitness Limited is largely 18 to 24 year old from London (7,302 likes).  The YouTube video, “Sunday Discussion Fallacy of Naturals Outworking Enhanced Athletes”, which is complained of in the letter of claim (as one example), has received 8778 views as of writing this post (some of those may be duplicates).  Assuming the demographic of Ice Cream Fitness’ Facebook page is the same or very similar to the viewer profile of the ICF YouTube channel, the alleged defamatory comments were presented not to the wider bodybuilding and power lifting community but a fraction of it.  Moreover, the viewers tend to be made up of 18 to 24 year olds and generally reside in London, England.

The demographics information was obtained taken from Facebook earlier today.

Working Through Defamation Logically

There is a lot going on in the alleged the defamation of Layne Norton by Jason Blaha and Ice Cream Fitness and this blog so far considers disparate elements of the claim in addition to providing a brief overview of the law.  There is a better, more logical way to work through a claim for defamation , which this blog post outlines.

1)      Is it slander or libel?

Libel is a statement in permanent form (written statements and television broadcasts).  Slander is temporary and may be spoken words (not broadcast) or potentially a gesture.  The difference is libel is actionable per se and does not require consequential loss.  Slander on the other hand (with four exceptions) requires proof of a quantifiable financial loss.

If Jason Blaha’s comments are defamatory they are likely to be considered libellous and actionable per se.

2)      Is defamation available?

•  Both parties must be alive.
• There is a right to trial by jury if the case is not too complex.
• Claims must be brought within 12 months.
• There is no public funding for defamation.

There is nothing in this category that is likely to impact on this case, except the broader issue of funding and the reality that cases like this tend to favour the rich.

3)      The comment must be defamatory.

There are three elements to this.

a)      The statement must be defamatory.

b)      The statement must be about the claimant.

c)       The statement must be published.

It is the claimant’s responsibility to establish these, but the defendant can challenge the claimant’s points.  If these are not established by the claimant there is no claim to answer.

Each of the above points will be a separate post at a later date, although the criteria for whether a statement was defamatory were briefly set out in “What is the Law” and whether the statements were about the claimant was briefly covered as it applies to the facts of this case in, “Would the Real Lame Norstrom Please Stand Up”.

4)      Defences

There are a range of defences, not all of which are applicable to this case.  It is the defendant’s burden of proof to establish his defence.

a)      Privilege

b)      Innocent Publication

c)       Consent

d)      Justification

e)      Fair Comment

f)       Offer of Amends (though not strictly a defence)

The two obviously relevant defences are Justification and Fair Comment and a brief outline of those was provided in the post, “What is the Law”.  More detail will be added later and Offer of Amends will also be looked at separately

5)      Remedies

a)      Damages

b)      Injunction

Damages have very briefly been discussed in What is the Law, and a more detailed series of posts will come later.  Injunctions will also be considered in a subsequent post, however; the two most common applications are for;

• An interlocutory injunction to prevent the publication of defamatory material if the claimant is aware that its publication is likely, and
• An injunction following a successful defamation claim if the claimant can establish there is a real risk that the defamation will be repeated.

It is possible to apply for an interim injunction to take material down pending a trial, however; these are rarely successful where the defendant can rely on a defence.

Would The Real Lame Norstrom Please Stand Up

Part of the case that Layne Norton will have to make is that the alleged defamatory comments are about him.  Layne Norton is specifically named in the first video complained of.  However, in the subsequent 15th June 2013 video, “Spotting A Fake Natural Bodybuilder Part 3 Growing Into A Show Ala Lame Nordstrom”, the purportedly fictional character, “Lame Norstom”, is referred to by Jason Blaha and questions are raised about Lame Norstrom’s use of banned substances.  Layne Norton suggests that the comments directed at Lame Norstom are in fact defamatory comments directed at him.

The 15th June Lame Norstrom video comes with the caveat that, “Under UK law use of nicknames that neither a public figure nor his personal friends use to address him is not considered slander or liable and is a protect right of the media for the purpose of satire and criticism”.  This appears to be Jason Blaha’s position and similar statements are made subsequently.  However, the correct legal principle involved is whether or not a reasonable person would think that the defamatory statement applied to the claimant or not.  This was established in the 1940 Court of Appeal case, Newstead v London Express Newspaper 1 KB 337 and that is the question the court will have to decide.  Would a reasonable person believe that Lame Norstom was meant to be Layne Norton?  If on the facts the court decides that question in the affirmative Jason Blaha will be liable for any comments found to defamatory if they were directed at Lame Norstrom.

Defamation One

This post will take a quick look at the first of the alleged defamatory comments and the facts (as far as they are currently known) in support of either party’s case.  However, this is only based on the limited information currently in the public domain.  And, Layne’s solicitors have reserved the right to make further allegations, although the most, “egregious examples”, are apparently set out in the Letter of Claim.

The first of the alleged defamatory comments relate to the video, “Layne Norton BCAA Research Does It Matter To Your Results Q&A” (since removed).  This was published on the 1^st April 2013, before the incorporation of Ice Cream Fitness Limited.  According to the transcripts Jason Blaha identifies himself and Layne Norton, and confirms that he is discussing Layne’s research on branch chain amino acids.

Jason Blaha comments that the research may have little real word application.  He goes on to allege that there is bias inherent in Layne Norton’s research, because he works for a supplement company.  Jason Blaha expresses the opinion that in his view the data seems geared towards selling branch chain amino acid powders.

It is not hard to find academic or expert support for Jason Blaha’s theory that BCAA supplementation might not be necessary in athletes who already consume adequate protein.  However, Jason Blaha also suggests that the research is inherently bias because of Layne Norton’s association with a supplement company and implicitly if not directly geared towards selling more product.  For a defence of Justification to succeed, the comments must be true.  For a defence of Fair Comment to succeed, the opinions expressed must be based on facts which were true.  Jason will have to show, at the least, that there existed a relationship between Layne Norton and Scivation (or other commercial interest) at the time his research research was conducted.

Layne Norton asserts that his relationship with Scivation did not commence until May 2011 and his PhD on BCAA supplementation was completed a year before that in May 2010.  The implication is that Jason’s Blaha’s comments cannot be based on fact.  However, there are various articles published on Layne Norton’s website, which were published subsequent to the commencement of Layne’s relationship with Scivation.  It is not clear which research Jason Blaha is discussing in his video and that will be a question of fact for the court to decide.  However, if Jason Blaha is successful on that point, he will still need to show that his opinion was honestly held.  Provided the opinion is honestly held it should not matter whether it might be considered obstinate, prejudiced or exaggerated Reynolds v Times Newspaper [2001] 2 AC 125 (HL).

Who is Ice Cream Fitness Limited?

Ice Cream Fitness is named as a potential defendant in the Letter of Claim.  What follows is all a matter of public record.

Ice Cream Fitness Limited was registered on the 6^th June 2013.  Jason Blaha is the sole director.  No accounts have been filed (which is normal for a new start up).

Three of the defamatory comments alleged in the Letter of Claim predate the incorporation of Ice Cream Fitness Limited, so Jason Blaha is solely liable for those.

Are the £15,000 Solicitors Costs Extortion?

On the 27^th September 2013 Jason Blaha published a video on his YouTube channel claiming that the alleged case against him (and his company Ice Cream Fitness Limited) is extortion.  He refers specifically to the sum of £15,000 costs purportedly incurred by Layne Norton’s solicitors in their Letter of Claim (dated 8^th August 2013), which Jason Blaha has also published.

On the face of it, for any individual sitting in their home opening up and reading through a solicitor’s letter £15,000 is a considerable amount of money, especially when all that appears to have been done is a rather lengthy letter by those solicitors.  Jason Blaha is clearly concerned with whether this sum has been paid, and if not suggests that the costs claimed amount to fraud or extortion.

Putting that to one side for a moment, one of the reasons English defamation law has been criticised in the past is because the burden of evidence on the defendant to escape liability for a claim is unduly high; they have to prove that their allegations are true or that they are the expression of a reasonable opinion based on facts.  In addition the cost of defending a claim can be substantial in its own right and most private individuals do not have anything like the resources to defend themselves properly.  Accordingly, opponents of English defamation law – notably the action group Libel Reform – suggest that wealthy litigants might suppress legitimate criticism and stifle meaningful debate through their financial might.  That may be a possible concern here; however, it is not within the Courts power to hear such arguments.  The Court can only apply the law as it stands.

In order to establish extortion or fraud – without going into great detail about the various offences which might fall under these terms – Jason Blaha or Ice Cream Fitness would need to establish an element of unlawfulness.  However, the rules which govern solicitor’s costs in English law and the liability for defendants to meet those costs are well established.  The sum of £15,000 is likely to only be an estimate (albeit perhaps a high one) and it need not yet have been paid by Layne Norton (it would suffice that he has properly incurred a liability to pay his solicitor those costs).  Although the case is still in its early stages, the work undertaken so far appears to be quite substantial; a detailed review of numerous videos and the lengthy comments sections below each one, preparing transcripts of those videos, writing letters (at least one lengthy and detailed Letter of Claim), and attendances on client and other parties.  The firm of solicitors instructed by Layne Norton is a very reputable international firm, although the solicitor handling the case was only admitted two years ago and that may be reflected in his hourly rate.  If a barristers opinion has been sought that would increase the costs further.  £15,000 is ostensibly high, but may not be incredibly far from the mark.  Whether that £15,000 is reasonable is another matter.  However, unreasonable or not, Layne Norton’s solicitors request for costs is lawful and cannot therefore amount to extortion or fraud.

If Dr Layne Norton’s case is successful Jason Blaha and / or Ice Cream Fitness will be liable to pay his solicitor’s reasonable costs.  That is something which will be determined after the claim has been decided and Jason Blaha / Ice Cream Fitness Limited will have the opportunity to challenge the reasonableness of the costs then.  In the meantime, while Jason Blaha’s concerns as an individual struggling to defend a costly litigation may receive broader critical support and sympathy, the costs are certainly not an attempt at extortion.

What is The Law?

This is only a brief and general overview of the legal position.

The applicable law in England and Wales is the law of defamation, which has it roots in negligence and includes words that were spoken (slander) and words that are written (libel).  English law has been criticized for putting far too much of a burden on the defendant and as a result restricting free speech.  English law is set to change in response to that criticism with the Defamation Act 2013.  However, as the Act is not yet in force, it will not be applicable to this case.  Accordingly, the claim will be decided under the existing common law (the decisions of previous courts, which must be followed by subsequent courts) and other relevant Acts of Parliament, for example the Defamation Act 1996.

 Who Must Prove What?

Dr Layne Norton only has to prove that the statements were made by the Jason Blaha and/or Ice Cream Fitness and that they were defamatory.

Defamation is all about a person’s reputation and statements which might damage that reputation.  Defamation might be established where the statement;

• Diminishes a person’s standing in the estimation of right thinking people, or
• Injures a person’s reputation by exposing him to hatred, contempt or ridicule, or
• Tends to make a person shunned or avoided.

Importantly, Dr Layne Norton does not have to prove that the allegations are false.

Jason Blaha and Ice Cream Fitness Limited will need to establish a defence once Dr Layne Norton has proven the comments were defamatory and made by one or both of the defendants.  There are two defences open to them.  The first is the defence of “Justification”; the statements complained of by Dr Layne Norton were true.  The second possible defence is that of “Fair Comment”; the defamatory statements amounted to opinions which were honestly held and based up facts which were true.

Damages

Damages in defamation cases can be quite high, and have attracted criticism for being significantly higher than awards for personal injury.  This is because cases are typically heard in front of a jury, and juries have a tendency to push up damages.

If Dr Layne Norton is successful in his claim for damages he is entitled to be compensation for;

a)     Any damage to his reputation,

b)     Vindification of his good name,

c)      To take account of the distress, hurt and humiliation which he suffered”

The Court of Appeal has issued guidance in John & MGN Ltd [1997] QB 586 to bring awards for damages under control.  A jury can be referred to damages which the Court of Appeal has approved or substituted.  However, the trial judge must refrain from steering the juries opinion towards a particular amount of damages.

There are two types of damage that can be awarded; special damages, which compensate the claimant for his actual financial loss and general damages that attempt to compensate the claimant for the damage to his reputation.  It seems unlikely that Dr Layne Norton would lose existing clients or customers, or suffer the loss of prospective customers, or the financial backing of his sponsors, or any similar direct loss of income.  However, if he claims that he has he will need to prove that.  It is more likely that the bulk of any award, if there is an award, would be for any damage to his reputation (I will do a specific post on that point at a later date).