Case Law, Canada: Baglow v Smith, defence of “fair comment” succeeds in landmark blogging libel case

5 03 2015

free-dominion-libel-1024x843The long running and high profile “blogger defamation” case of Baglow v Smith has been determined in the defendant’s favour.  In a judgment handed down on 23 February 2015 ( [2015] ONSC 1175), the Ontario Superior Court of Justice held that the operators of a right wing message board were publishers of defamatory material concerning a left wing blogger.  However, the claim failed because defendants were entitled to rely on the defence of “fair comment”,  The case addressed, for the first time, a number of issues concerning “blogging and the law of defamation.

Background

The plaintiff, John Baglow owns and operates a blog called “Dawg’s Blawg” on which he posts left-wing opinions on various political and public interest issues using the pseudonym “Dr. Dawg.”

The second and third defendants, Mark and Connie Fournier operate and moderate a message board called “Free Dominion”, a site described as a venue for expressing conservative viewpoints.  The first defendant, Roger Smith, whose nom de plume in the blogosphere is “Peter O’Donnell”, is a right-wing commentator who comments frequently on Free Dominion and other blogs, including the plaintiff’s.

The plaintiff claimed that the defendants defamed him by making statements on the Free Dominion internet message board. The plaintiff complained that the defendants defamed him by branding him “one of the Taliban’s more vocal supporters”. Although the plaintiff had the opportunity to respond on the message board, he did not do so but rather, sued for defamation. The defendants brought a summary judgment motion to dismiss the action on the basis that the statements were not defamatory or, alternatively, that the defence of fair comment applied.

The defendants applied for summary judgment and on 30 August 2011, Annis J held that the impugned statements were not defamatory and granted summary judgment dismissing the action (Baglow v. Smith, 2011 ONSC 5131). We had a post about this decision at the time.

The plaintiff appealed and the Court of Appeal decided that the important question as to the application of the law of defamation to a robust and free-wheeling exchange of political views in the internet blogging world was something which is best resolved after a full trial. In a judgment handed down on 14 June 2012 (2012 ONCA 407).  We also had a post about this decision.

The case was tried by Polowin J on 24 to 28 March, 3-4 June; 15-18, 22 and 23 September 2014. Judgment was handed down on 23 February 2015.

Judgment

Introduction

The Judge noted that, at the trial

“The battle between the left and the right in the political blogosphere played out in the courtroom, their ideological differences with respect to the issue of free speech an undercurrent throughout” [8]

The Court appointed an expert to assist it and the Canadian Civil Liberties Association (“CCLA”) were given permission to intervene.

The Judge set out the impugned words which arose out of postings by the plaintiff in August 2010 ([9] to [26]).  She then analysed the evidence of the various parties ([27]  to [97]).

The judge then turned to the evidence of the Court appointed expert, Dr Greg Elmer, Professor of Radio and TV Arts at Ryerson University.  He gave evidence as to studies of blogs and bloggers and on how readers would respond to the posts in question on various factual assumptions.  His view was that

the readers would likely think that the poster was trying to provoke debate.  Dr. Elmer further stated that if the post was disjointed and over the top, the likelihood was that readers would ignore it. [129]

The Judge noted that

The law of defamation involves a delicate balance between two fundamental values: the worth and value of an individual’s reputation, which the law of defamation seeks to protect, and the freedom of expression, which the law of defamation inherently limits. [157]

She went on to consider three decisions of the Supreme Court of Canada on this balance (WIC Radio Ltd. v. Simpson; 2008 SCC 40, Grant v Torstar Corp , Grant 2009 SCC 61 and Crookes v. Newton, 2011 SCC 47) and a number of other authorities. 

Reference

The Judge held that words referred to the plaintiff as some commenters and readers of Free Dominion would know that he was “Dr Dawg” ([172] to [174]).

Publication

The Judge then turned to the issue of publication.  The Fourniers submitted that they did not write or participate in the posting of the words complained of [178].  They arrgued that holding message board operators liable would have chilling effect on the flow of information [179].  The CCLA supported this position [184].

However, the Judge noted that the Fourniers were the moderators and administrators of Free Dominion and had the ability to control content [193].  She held that they were publishers of the words posted, noting that

“The evidence reveals in this case that almost all of the individuals who post or comment on Free Dominion do so anonymously.  To adopt the position of the defendants would leave potential plaintiffs with little ability to correct reputational damage and would impair that delicate balance” [196]

Were the words defamatory?

The defendants argued that a reasonable reader would not think less of the plaintiff as a result of the impugned words [199]  The CCLA supported this position, referring to the “rough and tumble” nature of political discourse on the internet [202].

However, the Judge noted that

“taking the submissions of the CCLA and the defendants to their logical conclusion, little, if anything, could be found to be defamatory on partisan weblogs and message boards.  Implicit in their submissions is that based on the rough and tumble nature of these media platforms there would be little, if anything, that would tend to lower the plaintiff’s reputation in the eyes of a reasonable reader.  However, there is nothing in the law of defamation to suggest that that is the case” [207].

Although Dr Elmer’s research indicated that personal attacks were not uncommon on the Internet he stated that many people are still shocked by such attacks. The Judge commented

Prior to hearing the evidence in this case it would have been intuitive to me that people do not believe what they read on the Internet as compared to mainstream media and that people do not lend credibility to those who post anonymously.  However, Dr. Elmer’s evidence indicated otherwise.  Credibility for online anonymous political actors can be gained over time.  It is to be noted that Mr. Smith has a long history of posting on Free Dominion as Peter O’Donnell and would be well known to its regular readers”. [212]

Although when a commenter challenges the opinion of a blogger, people expect to see a rejoinder, there was no such expectation in this case as there was no evidence that the plaintiff had ever posted on Free Dominion [213].

The Judge held that the words which referred to the plaintiff as “one of the Taliban’s more vocal supporters” were reasonably capable of bearing the defamatory meaning that he supported Islamist terrorism [214].

Fair Comment

The Judge accepted that the words complained of were on a matter of public interest, namely the case of Omar Khadr [223].

The plaintiff accept that he had written extensively about this case and this would be well known in the political blogosphere [225].  He was well known for taking the position that Omar Khadr should be repatriated to Canada and treated in accordance with international law [226].  As a result the comment was based on fact.

In determining whether the impugned words were comment or a statement of fact, the Judge noted that a comment includes a “deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof” [228].

In order to determine whether the statement was fact or comment it was important to look at the context.  In particular

  • The impugned words were found in a post on an online political message board established to allow people to voice their opinions on political and social issues [230]
  • The post had a confusing title and was, in essence a rant –

Mr. Smith was railing against cultural elites, Bay and Bloor Street, scientists who believe in global warming, Torontonians, Liberals, the Mark Steyn human rights case, the census, the CBC, and elitists in Ontario.  He spoke of a culture war and Western separatism. [231]

looked at as a whole it was commentary.

As a result, the judge held that construed in context the statement was comment [234].  The plaintiff failed to establish malice against the Fourniers (it was not alleged against Mr Smith).  As a result, the defence of fair comment.

Costs

The Judge noted that both sides were successful and unsuccessful in part and that they had view the cases as “precedent setting” for political bloggers

I was left with the clear impression from both sides that guidance from the Court with respect to the application of the law of defamation to the political blogosphere, where debate can be caustic, strident, vulgar and insulting, is required.  Because of the issues involved the CCLA sought and was granted intervenor status.  There is a public interest element to this litigation. [251]

The Judge therefore decided that both sides should bear their own costs – with the expert’s costs split between them [253].

Comment

Although both parties won some of the issues, in the end the plaintiff’s claim for libel depended on a single post on the defendants’ site and was unsuccessful.  The costs order is surprising.

In terms of the legal lessons learned, unsurprisingly the parties drew very different conclusions from the judgment.  Their positions were set out on their respective blogs.

The plaintiff, on Dawg’s Blawg, described this as a “pyrrhic victory” for the Fourniers and Roger Smith.  He noted three other points:

  • “The Fourniers are publishers”. This case clarifies that those who run message boards like Free Dominion are legally liable for the content that appears there. This requires serious vetting of that material, not a hands-off approach.
  • “No brave new world for the Speech Warriors”.  “Speechies should stifle their cheers a little: the floodgates have not been opened by this ruling. Defamation is still a thing”.
  • There was no precedent-setting at all. “No new law was created here, no bold new path was set, history was not made”.

In short, he suggested that the case decided that.

“The blogosphere is not something separate and apart from other forms of mass communication, a space where conventional rules do not apply. They do“.

The defendants took a rather different view in a post entitled, (with clear exaggeration) “6 ways in which Baglow v Smith helped save the Internet“.  They, rightly, emphasised the fact that this was a case won by the defendants – as unusual in Ontario as it used to be in England.  Their other points included:

  • Expert testimony about the nature of discourse on the internet is incorporated into this ruling and it is now available for the use of future defendants.

“The court’s expert, Professor Elmer, made it very clear that the blogosphere is a place where one can expect heated debate, where brevity is the norm, and where conversations can move from place to place“.

  • The made it clear that online publication was an issue for the legislature. The defendants suggested that this supported law reform with regard to internet publication as they have done in the UK.
  • This case makes it very clear that “‘internet snark’ is expected in the blogosphere and that sarcastic posts and photoshopped pictures should not be considered evidence of malice”. T
  • The Judge made it clear that “posts on a political message board or blog would be likely to be interpreted as opinion rather than fact“.

The true position on the legal consequences of the judgment is somewhere in between the views of the parties. The Judge did apply conventional defamation principles in relation to meaning and publication.  She did, however, break new ground by receiving expert evidence about the operation of the blogosphere.  It is likely that attempts will be made to rely on this kind of evidence in future cases.  Her conclusion on fair comment involved taking a broad view of the defence but one which many will find appropriate in the rough and tumble of online political debate.


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5 03 2015
l8in

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