When do Ad Hominem Attacks in the Blogosphere Attract Civil Liability? Ontario Court of Appeal Sets Stage for Latest Fight in Growing Body of Internet Defamation Jurisprudence

At some point, we’ve all been there. Be it on Facebook, Twitter, or as the case was for John Baglow and Roger Smith, on a blog, many could quite easily recall an instance in which he or she took to the Internet to discuss the issues of the day. Surely, one need not spend hours poring over Andrew Coyne’s Twitter feed or a popular blog to get a sense of the tenor of these digital debates, which can range from the reserved and civil to the “caustic, strident or even vulgar and insulting.” With online political discourse now getting personal with stunning quickness and fervency, however, when (if ever) should one’s posted comments attract civil liability? Last Thursday, in setting aside the motion judge’s order of summary judgment and remitting to trial a defamation action involving two political bloggers, the Ontario Court of Appeal set the stage for the next fight in the Baglow v Smith saga that may yet provide some insight into the question.

Background

Back in March, Ajit Singh wrote a piece featured on TheCourt.ca about Justice Annis’ dismissal of the claim. As such, I will only provide the most essential context here.

The plaintiff in the action, John Baglow (a.k.a. “Dr. Dawg”), maintains a popular blog where he posts “News, Views and Analysis” from an unabashedly “left-wing” perspective. Roger Smith (a.k.a. “Peter O’Donnell”) is a “right-wing” commentator who frequently posts on the message board FreeDominion, which touts itself as “the voice of principled conservatism”. Over the course of three days in August, 2010, Baglow and Smith found themselves in a characteristically fierce exchange regarding the legal status of Omar Khadr. Shortly after describing conservative Canadians as “yokels with pitchforks”, Baglow published a post calling for Mr. Khadr’s repatriation from Guantanamo Bay on the basis that he was being detained and tried contrary to international law. Perhaps provoked by Baglow’s remarks, Smith described Baglow as “one of the Taliban’s more vocal supporters“. In response to this charge, John Baglow filed a statement of claim alleging defamation listing Roger Smith, as well as the two operators of FreeDominion, as defendants.

In setting aside Justice Annis’ order of summary judgment, Justice Blair’s reasons illuminate areas of defamation law that will likely be developed by a trial on these facts, while also shedding further light on summary judgment procedure as it relates to Internet defamation in a post-Combined Air legal climate.

Where is Internet Defamation Law Heading?

As the Supreme Court of Canada recently restated, in order to make out a claim for defamation, the plaintiff must establish:

1. The words in question are defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
2. The words in question do in fact refer to the plaintiff;
3. The words in question were published, in the sense that they were communicated to at least one person other than the plaintiff.

In dismissing the claim, Justice Annis drew two principal conclusions regarding the impugned comment and defamation law. First, Justice Annis held that the words in question tended not to be defamatory either because they amounted to a statement of opinion rather than a statement of fact—which has a diminished tendency to lower one’s reputation in the eyes of the reasonable reader—or because they lacked the “sting of libel” when made in the context of a political blog where the tone of the discourse is often visceral and personal. Second, Justice Annis further found that, in any event, the words in question would be protected by the defence of fair comment on a matter of public importance.

Although Justice Blair explicitly declined to weigh in on the substantive merit of Justice Annis’ findings, his reasons for setting aside the order shed light on the difficult legal questions a trial on these facts may help to clarify.

First, there is recognition by the Court of Appeal that there may be some appreciably different quality about exchanges in the political blogosphere as opposed to exchanges on the opinion pages of the Globe and Mail, which, at the very least, cannot properly be disposed of at this preliminary stage. We know, for example, that there is a greater degree of mud-slinging tolerated on political blogs than perhaps would be tolerated in other venues. Baglow, for example, took no issue with being called “treason[ous]” and a “traitor” in his statement of claim—but is anything fair game? Does the “reasonable person” reading the impugned words reach different conclusions regarding reputation damage if those same words are read in newsprint rather than on a political blog? One cannot help but suspect that a proper resolution of these legal questions requires a more substantial evidentiary record than one containing only a series of blog posts.

Second, there is some question as to whether an exchange on political blogs amounts to a modern live debate, or something less. On this point, Justice Annis found that the reasonable observer in the context of exchanges on political blogs would anticipate a rebuttal from Baglow to the impugned comment, and until such a point, the reasonable observer is unlikely to interpret the comment as one that lowers the plaintiff’s reputation. Justice Blair did take issue with this characterization, though reserved to make conclusions either way without “the assistance of expert testimony” (at para 38). Surely, to suggest that the reasonable reader would not interpret reputation damage pending a response to an allegedly defamatory comment is not only gratuitously kind to even the most “reasonable” among us, but also a tall ask of putative victims of Internet defamation.

Finally, Justice Blair does a wonderful job clarifying that the facts in question should be understood as dealing with defamation in the context of political blogs and not in the context of Internet publications altogether. What constitutes defamation on a blog may be different from what constitutes defamation on Facebook, which may be different still from what constitutes defamation on Twitter. The approaching Baglow v Smith trial has the potential to go a long way in laying down legal principles in the context of Internet defamation, but it most certainly will not be the last dispute on facts of this sort.

Consequences for Summary Judgment Procedure

Brief word must also be given to the consequences of the Court of Appeal’s decision for summary judgment procedure. It must be stated from the onset that Justice Annis did not have the benefit of the recent Court of Appeal decision in Combined Air Mechanical Services Inc. v Flesch, which articulated a new test for deciding motions for summary judgment. In granting orders of summary judgment, motion judges in Ontario must now be satisfied that they can gain a “full appreciation” of the evidence and issues before them on the basis of the motion record alone. If the ability to make dispositive findings requires the benefit of cross-examination and a trial narrative, for example, then the matter should proceed to trial.

Given that factual disputes like the one in question are ongoing in the “relatively novel milieu of Internet defamation in the political blogosphere” (at para 23), which “have not been addressed in the jurisprudence in any significant way” (at para 29), one can reasonably infer that it would now be difficult for a motion judge to gain a “full appreciation” of a hypothetical Internet defamation dispute before him or her until some of the legal questions described above have been addressed in the case law. This should not be a cause for alarm, however, and is in line with standard practice in ordinary defamation lawsuits. Summary judgment has been granted sparsely in defamation cases, one can assume, because of the relatively low threshold required to make out a prima facie defamation claim, and also because of the historic view that defamation claims are best resolved by triers of fact on the basis of a healthy evidentiary record.

Conclusion: A welcomed, context-driven approach by the Court of Appeal

In any event, the Court of Appeal’s decision in Baglow v Smith represents a continued effort by our courts to make sense of traditional legal principles in light of challenges posed by the Internet. Defamation law, in particular, has been an area of our jurisprudence growing in recent years to accommodate the Internet. Indeed, back in 2004 Justice Blair was wise to the exceptional degree of reputation damage that can be caused by defamation on the Internet owing to the web’s instantaneous and comparatively widespread reach. Similarly, just last year the Supreme Court of Canada weighed in on the extent to which a hyperlink that directs readers to defamatory material constitutes “publication”, an essential element of the cause of action.

Justice Blair’s decision in Baglow v Smith should be seen as a welcomed next step in the march towards bringing defamation law up to speed with the digital age. Whether the facts themselves work to reveal the troublingly sordid state of political discourse in Canada, however, is an entirely different, though no less significant, question.