Online defamation

An interesting ruling from the Ontario Superior Court, as reported by the International Forum for Responsible Media:

On 30 August 2011 the Ontario Superior Court of Justice handed down judgment in the case of Baglow v. Smith, 2011 ONSC 5131. The decision suggests that an allegedly defamatory statement made in a debate on a blog or internet forum may not be found to be defamatory if the plaintiff previously engaged in the debate but did not respond to the statement despite having the opportunity to do so.

As far as I know, this is the first ruling of this type.

The plaintiff claimed that the defendants defamed him by making statements that exceeded the boundaries of their normally acrimonious political debate 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”. The parties had aggressively berated each other on the message board, and often employed colourful derogatory characterizations. Although the plaintiff had the opportunity to respond to the impugned statements on the message board, he did not do so. 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.

Mr. Justice Annis concluded that the impugned statements were not defamatory and granted summary judgment dismissing the action.

I’m glad of that. I doubt anyone would take a forum comment calling someone a Taliban supporter to be literal.

What is interesting is the comments made obiter by the Judge:

“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.”

It will be very interesting to see if this view is shared by other Judges. He carried on:

“[58] Although I am satisfied that the words complained [of] are not capable of damaging the reputation of the plaintiff, I am of the view that there is another contextual factor that would further bolster this conclusion, namely that the alleged defamatory words were made in the context of an ongoing blogging thread over the Internet.

[59] 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 a relatively contemporaneous time frame.

[60] This distinguishes the context of blogging from other forms of publication of defamatory statements. One exception could be the live debate, of which blogging constitutes the modern written form.

Heh I could be sued by a number of National MPs for comments I’ve made about them, while chairing debates 🙂

It is noted:

70] Bringing an action on the comment in mid-debate runs contrary to the rules and has the effect of chilling discussion. If allowed, it places the opposing party in a defensive mode, rather than an offensive one, strategically putting that party at a disadvantage.  …

I suspect the next time there is an online defamation case, these obiter comments will be cited by the defendant. It will be fascinating to find out if any other courts agree.