The recent case of Baglow v. Smith, 2015 ONSC 1175 (CanLII) brings to the forefront the issue of internet defamation in the context of a political blog
This case starts off with a bang. Madam Justice Polowins writes the following in the first three lines of her judgement:
Political debate in the Internet blogosphere can be, and, often is, rude, aggressive, sarcastic, hyperbolic, insulting, caustic and/or vulgar. It is not for the faint of heart. This case is an action in defamation involving political bloggers on the Internet.
The plaintiff, Dr. Baglow, was the owner and operator of an internet blog known as “Dawg’s Blog” on which he posted opinions and commentary on political issues. He is well known in the “blogosphere” for his left-wing opinions and criticism of right-wing politics.
The defendants, Mark and Connie Fournier, moderate a message board on the internet called “Free Dominion”. Free Dominion posts right-wing opinions and commentary on political issues. The other defendant, Roger Smith, is a right-wing blogger.
On August 10, 2010, Smith posted under the pseudonym “Peter O’Donnell” on Free Dominion. He wrote a lengthy comment in which he refers to the plaintiff as “one of the Taliban’s more vocal supporters”. The plaintiff demanded that the Fourniers remove that post from Free Dominion as it was defamatory. The Fourniers refused to do so.
The defendants were successful in bringing a summary judgment motion in 2011. The judge found that there was no genuine issue for trial and even if there was a genuine issue for trial then the defendants could still rely upon the defence of fair comment. The plaintiff appealed this decision.
The Ontario Court of Appeal then heard this matter in 2012 and decided that in fact there was a genuine issue for trial. The Court of Appeal in its decision wrote that these internet defamation issues have not been addressed in any robust way by the jurisprudence and, as such, any decision on internet defamation could have a wide-reaching effect. Therefore, these issues were better addressed by way of a full trial.
The judge first looked at whether or not the plaintiff established the three elements necessary to prove defamation.
First, the judge agreed that the plaintiff had established that readers of Free Dominion would know that the impugned words refer to the plaintiff.
Second, the judge went on to establish that in fact the impugned words were published by all the defendants, including the Fourniers. The Fourniers had argued that they were not publishers of the impugned words according to the definition set out by Justice Abella in paragraph 14 of Crookes v. Newton, 2011 SCC 47 (CanLII): To prove the publication element of defamation, a plaintiff must establish that the defendant has,by any act, conveyed defamatory meaning to a single third party who has received it (McNichol v. Grandy, 1931 CanLII 99 (SCC),  S.C.R. 696, at p. 699). Traditionally, the form the defendant’s act takes and the manner in which it assists in causing the defamatory content to reach the third party are irrelevant: There are no limitations on the manner in which a defamatory matter may be published. Any act which has the effect of transferring the defamatory information to a third person constitutes a publication.
The Fourniers went on to argue that holding a message board operator liable as publishers for postings is a violation of freedom of expression and would have a chilling effect on the flow of information, debate, etc. on the internet.
The Judge disagreed with the Fourniers. The Judge wrote that the decision in Crookes is not applicable to the case at hand and that to compareCrookes in this case would be to “compare apples to oranges.” In Crookes, the Supreme Court looked at whether or not a reference to a hyperlink only would constitute publication. However, in this case the Fourniers were not mere passive bystanders but active participants and would make comments and post opinions on Free Dominion. Further, individuals who would make posts on Free Dominion did so anonymously. Therefore, people who have suffered reputation damage would have little to no recourse in protecting their reputations.
Finally, the judge looked at the impugned words themselves and found that they were defamatory. Next, the judge looked at the defence of fair comment. To establish the defence of fair comment, the following elements must be met:
- The comment is a matter of public interest.
- The comment is based on fact.
- The comment, though it can include inferences of fact, is recognizable as a comment.
- Any person could honestly express the opinion on the proved facts.
The judge quickly found that all the elements of the defence of fair comment were met. As such, the judge dismissed the plaintiff’s claim.
This case is very noteworthy. For the first time, known to us, an Ontario court has decided that the operators of an online message board may be held liable for defamatory posts of the users of the online message board. Before this case, victims of online defamatory posts on blogs, message boards, etc. did not have much recourse. They were left with trying to force the operators of online message boards to give information such as IP addresses to try and identify the poster which was very expensive and difficult to do.