2015 February 23

Baglow v. Smith, 2015 ONSC 1175

The Ontario Superior Court dismissed a libel action involving political debate in the Internet blogosphere on the basis the defamatory allegation was fair comment on a subject of public interest, published without actual malice. The Court noted that strong commentary was evident in the blog’s posts and comment threads. Opinions would be set out in a post on various issues and those who choose to do so would counter with opinions of their own in the thread. The particular context in this case led the Court to conclude the defamatory statement at issue was comment as opposed to an imputation of fact. “The post “Hey yokels with pitchforks, there is no libertarian base” was found in the [blog’s] subforum entitled “Opinions are Like Clymers” (“Clymer” has been defined to mean asshole), thus clearly indicating to readers that the post would contain opinion. The title of the post was vague and confusing and so would also alert readers that what followed was a commentary and not a factual dissertation. The post itself was rambling, if not incoherent, touching on a number of different topics. It was in essence a rant, with Mr. Smith giving his views and opinions on any number of issues, none too clearly. …The post looked at as a whole was clearly commentary.” The defamatory statement at issue was one which was incapable of proof and in context, was “rhetorical hyperbole.”

The Court rejected submissions by the defendants and intervenor Canadian Civil Liberties Association that the words complained of could not even be considered defamatory because readers expect hyperbole, profanity, personal attacks, invective, sarcasm, insults and bad language. The Judge stated: “I am very mindful that political discourse on weblogs and message boards, particularly those which are hyper-partisan, is qualitatively different than political discourse on more “traditional media” like newspapers and television. …I am also mindful that this Court must consider the context in which the words were used and the audience to whom they were published. However, it seems to me 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 submission 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 this is the case.”

The Court also stated: “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, [the expert witness’] evidence indicated otherwise. Credibility for online anonymous political actors can be gained over time. It is to be noted that [the defendant] Mr. Smith has a long history of posting … and would be well known to [the blog’s] regular readers.”

The Court also rejected submissions by the defendant blog operators that holding a message board and its operators liable as publishers for postings by the hundreds of people who post on it daily is an unconstitutional violation of the guarantee of freedom of expression, and that the operators, as providers of an interactive computer service, should not be liable for user-generated content from third parties. The Court noted that the defendant moderators and administrators of the blog had the ability to control the content of the blog. “[T]he 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. The evidence reveals in this case that almost all of the individuals who post or comment on the [blog] 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. Therefore I find the impugned words to have been published by [the defendants].“