2011 August 30

Baglow v Smith, 2011 ONSC 5131

The Ontario Superior Court dismissed a defamation action involving political bloggers who debated the validity of the trial of Omar Khadr, a Canadian being held by American forces at Guantanamo Bay, in a series of strongly-worded postings and counter-postings over a four day period in August, 2010. Granting summary judgment to the defendants (right-wing bloggers), the Court held the words complained of by the plaintiff (a left-wing blogger) were not capable of damaging the reputation of the plaintiff.

The Court stated that its conclusion the words were non-defamatory was supported by the “contextual factor” that they were published “in the context of an ongoing blogging thread over the Internet.” “Internet blogging is a form of public conversation. By the back and forth character it provides an opportunity for each party to respond to disparaging comments before the same audience in an immediate or relatively contemporaneous time frame. …This distinguishes the context of blogging from other forms of publication or defamatory statements.” Equating blogging to a live debate, the Court suggested that “in construing alleged defamatory words in an ongoing debate, [the Court] should determine whether the context of the comment from the perspective of a the reasonable reader or listener is one that anticipates a rejoinder, which would eliminate the possible consequence of a statement lowering the reputation of the plaintiff in their eyes.” “A statement is not derogatory when made in a context that provides an opportunity to challenge the comment and the rules of the debate anticipate a rejoinder, unless the statement is wholly outside the scope of the debate or otherwise so outrageous as to prevent meaningful argument from continuing.”

The Court held that “walking off the blogging stage … is a form of ‘gotcha’ contrary to the rules governing the debate” and that “bringing an action on the allegedly defamatory comment in md-debate runs contrary to the rules and has the effect of chilling discussion.” The Court found that the plaintiff, having used the blog “to aggressively berate” and publish “colourful derogatory characterizations” of the defendants, was not defamed having regard to the other derogatory remarks made about him and by him throughout the blogs.

In the alternative, the Court concluded that the words complained of were protected by the defence of fair comment and that the plaintiff had failed to prove that the defence was vitiated by express malice on the part of the defendants.