Blogs and Defamation

Craig Sisterton at NZ Lawyer writes:

Now, a recent Canadian judgment has ignited discussion about how the law of defamation applies, or not, to such blogging debates, and whether ‘anything goes’ in the blogosphere. Baglow v Smith, 2011 ONSC 5131 was a summary judgment decision of the Ontario Superior Court of Justice, dismissing an action in defamation involving political bloggers on the Internet.

The plaintiff, a left-wing blogger known by the moniker Dr Dawg (a retired bureaucrat and former executive with the Public Service Alliance of Canada), claimed that the defendants defamed him by making statements that exceeded the boundaries of their normally acrimonious political debate on the Internet. He complained that the defendants, a right-wing blogger and the owners and operators of the right-wing FreeDominion message board, defamed him by branding him “one of the Taliban’s most vocal supporters” on the message board. The words referred back to an ongoing discussion, on the plaintiff’s own blog and other websites, where the parties had vigorously debated the validity of the detention for seven years in Guantanamo Bay and subsequent military trial of Omar Khadr, a Canadian citizen who was captured by American forces as a 15 year old during the ‘War on Terror’.

The Court noted that the parties had aggressively berated each other, and often employed colourful derogatory language about the other and their beliefs. Although the plaintiff had the opportunity to respond to the ‘Taliban supporter’ comment, he chose not to do so, other than by way of a different online persona, Ms Mew, commenting that the defendants had crossed the line and that it would serve them right if Dr Dawg sued. 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.

Judge Annis held that the comment was not defamatory, and said his conclusion was bolstered by the location of the debate, “namely that the alleged defamatory words were made in the context of an ongoing blogging thread over the Internet” (at [58]).

“Internet blogging is a form of public conversation,” said the Judge at [59]. “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 a relatively contemporaneous time frame.” Blogging is distinguishable from other forms of publication of defamatory statements, and is more akin to live debate, he added at [60]-[61]. Such a context should be “considered as a contextual factor” when determining whether a statement is defamatory

I blogged on this case previously. It may turn out to be a significant one in future.

Judge Annis noted, at [85], that there was “nothing in the blogging threads which would suggest that there was any personal or inherent express malice on the part of the defendants directed at the plaintiff, as opposed to the mutual contempt of the parties for each other’s opinions and actions as evidenced by their postings”.

So, does this decision mean that it might be ‘game on’ for bloggers and commenters when it comes to slagging off those with a differing political opinion?

I don’t think it is game on, but generally you don’t want people running to the courts over a flame war. Hell I could have sued a number of blogs for defamation over comments they have made about me – especially those seeking to attack my business. But at the end of the day most of those making the defamatory comments have so little credibility it is hard to imagine it being worthwhile.

In a practical sense, says Price, we should bear in mind that bloggers defame each other (and other people) all the time and very rarely sue over it. So the judgment’s practical effect “may not be terribly great”, even if it was adopted here in New Zealand. However, the case is “a marker laid down” showing that the Courts are prepared to consider whether there is something distinct about speech on the Internet, at least in the context of political threads. “It revolves around the idea that the best remedy for bad speech is more speech rather than legal liability,” says Price. “It can be seen as reflecting the importance of political speech. It incentivises rights of reply. It recognises that defamation suits seem a disproportionate response to online bun fights. I suspect that these ideas will continue to affect the development of the law, though I suspect that the solution in this case (‘it’s not defamatory’) is not the best way to address them. Better would be a form of qualified privilege for people participating in such debates in good faith.”

There’s some comments from me, as well as those from Steven Price.