Baglow v Smith: The Sting of the Libel

Sometimes, some seemingly juvenile cases can lead to significant clarifications on areas of the law that have not kept up with our rapidly evolving world. Baglow v Smith, currently before the Ontario Court of Appeal is a prime example of one such case.

The Tale of Two Blogs

In Canada’s increasingly partisan and divided political climate, Dawg’s Blawg and FreeDominion are a gauge of the current temperature.

Written by Roger Smith of Burnaby, British Columbia, FreeDominion claims to be “The Voice of Principled Conservatism.” Conversely, Dawg’s Blawg, written by John Baglow of Ottawa, Ontario, is a well-known progressive and left-leaning blog.

During three days in August 2010, an exchange took place between the parties (“Dr. Dawg”, “Peter O’Donnell”, “Ms. Mew” and other aliases used by each party to mask their online identities while posting their comments).

At issue are comments made on the FreeDominion website calling the plaintiff, Mr. Baglow, “one of the Taliban’s more vocal supporters.” These comments focused on Mr. Baglow’s Dawg’s Blawg posts, in which he argued that Omar Khadr was being tried contrary to international law and voiced opposition to Canada’s military engagement in Afghanistan.

Based on these comments, Mr. Baglow launched a claim for defamation against three posters of FreeDominion. Mr. Baglow claims the comments result in a reasonable likelihood of damage to his reputation.

Blogging: The Modern Live Debate

However, the defendants counter-claimed in the Ontario Superior Court of Justice for a summary judgment dismissing the claim in 2011.

Justice Annis ruling on the defendants’ request focused on two issues: (1) whether the defendants establish there is no issue for trial and (2) whether the defence of fair comment applies.

On the first issue, Justice Annis had to determine if the comment was presented, in its “pith and substance”, as opinion or fact. While a low threshold exists for a traditional defamation claim to proceed, Justice Annis was required to determine if blogs are different. And in his opinion, they are.

Justice Annis ruled the entire publication must be analyzed rather than the isolated comment itself. Justice Annis concluded that the defendants’ comment was about the impact of Mr. Baglow’s views. In supporting this decision, Justice Annis cited Justice Lebel’s dissent in WIC Radio Ltd. v. Simpson, [2008] 2 S.C.R. 420, in the context of an Internet blog. Thus, the comment was an opinion rather than a statement of fact.

On the topic of Internet blogging and defamation itself, Justice Annis provides some interesting insight into how courts should view the topic.

Justice Annis declares, “Internet blogging is a form of public conversation.” Justice Annis distinguishes blogging from other forms of published defamatory statements because of its “back and forth character.”

This character of blogging gives parties an opportunity to respond to disparaging comments in a quick manner before the same audience. Justice Annis holds blogging to essentially be the modern written equivalent of a live debate.

And while Justice Annis says defamation can still occur in such forums, the “sting of the libel” is diminished by the immediate capacity to respond.

Justice Annis holds, in assessing allegedly defamatory words in an ongoing debate, the context will be determined

from the perspective of 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.

In Justice Annis view, the plaintiff brought this action in “mid-debate” and before seeking to refute the allegedly defamatory statement when provided the opportunity. Justice Annis writes that in such instances a claim cannot proceed.

However, Justice Annis does leave the door open to claims in some instances where “the statement is wholly outside the scope of the debate or otherwise so outrageous as to prevent meaningful argument from continuing.” However, one commentator points out that the scenario described by Justice Annis could be distinguished from defamation claims where the plaintiff does not participate.

Therefore Justice Annis finds that the comments at issue are incapable of conveying a defamatory meaning, meaning Mr. Baglow’s claim cannot proceed.

Fair Comment

But, the debate is not over yet. Justice Annis goes on to explore the issue of fair comment. Chief Justice McLachlin’s four-point test of the fair comment defence from Grant v Torstar Corp., [2009] 3 S.C.R. 640, as described in WIC Radio, is called upon:

(a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognizable as comment; (d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?; and (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice.

Justice Annis rules that only on the last step can Mr. Baglow succeed.

And for that determination, Justice Annis draws from Justice Ker’s declaration in McVeigh v Boeriu, [2011] B.C.J. No. 554. In that decision, Justice Ker elaborates upon another four-point test to determine express malice.

Justice Ker’s  four point test involves assessing a statement made by a person knowing it to be false; or made with reckless indifference as to whether it is true or false; or made for the dominant purpose of injuring the plaintiff because of spite or animosity; or made for some other dominant purpose which is improper or indirect, or also, if the occasion is privileged, for a dominant purpose not related to the occasion.

In Baglow, Justice Annis fails to find Mr. Baglow’s basis for these latter two points given that his own affidavit mentions the defendants are political adversaries with whom he has no personal connections.

Thus, Justice Annis rules in favour of the defendants, dismissing Mr. Baglow’s action and awarding them costs. However, about two months later Justice Annis further clarifies his decision.

With Costs But…

Justice Annis uses the Baglow v Smith, 2011 ONSC 6382, decision on costs to further clarify his reasons, given that libel in the Internet blogosphere is a novel area of law.

Justice Annis clarifies it is in the ambiguous nature of the term “supporter” that Baglow’s claim of libel fails. Justice Annis further notes that the “public conversation” character of blogging is simply an additional, though not determinative, contextual factor.

Furthermore, Justice Annis affirms Mr. Baglow’s position that “defamation on Internet blogs constitutes a novel issue of some public importance.” In what some believe is a step back from a previously more hardened position, Justice Annis reduced the costs awarded to the defendants by 50 per cent.

Court of Appeal Walks A Thin Line

This brings us to Mr. Baglow’s current appeal of Justice Annis’ decision before the Ontario Court of Appeal. (Mr. Baglow is even posting about it on his blog.)

Arguments for the case took place on 13 March 2012. No doubt the outcome will further clarify defamation laws in Canada, especially as they relate to the blogosphere.

The Court of Appeal’s decision will inevitably have a significant impact at a time where our political discourse becomes increasingly uncivil.

While the impugned comments (and other comments on both sides) are in extremely poor taste, should it fall to our courts to civilize our political discourse?

The foundation of our democracy depends upon an enlightened political debate, the capacity to listen to diverse viewpoints, and our willingness to adjust our positions based on the knowledge we gain from those debates.

The Court of Appeal’s decision will inevitably have an impact upon these political debates in our new age of social media. But this puts our courts in the difficult position of walking a very thin line. Hopefully the ensuing decision will not further encourage belligerent parties to sink into this downward spiral of incivility, nor have a chilling effect on passionate debates on controversial issues.

Justice Annis, though sometimes diverging on tangents unrelated to the legal issues in this case, captures the essence of this “debate” between the two sides:

We are left with both sides simply advancing what they mean by supporting the Taliban. Tactically they wish to focus attention and anchor debate around their position and not the opponent’s which would require them to truly debate whether the ends can justify the means.

The lesson we can learn from this case is that we shouldn’t have to resort to courts to humanize our political discourse; that onus falls upon us as Canadian citizens.