This past week the Ontario Superior Court released the decision in Baglow v. Smith, where the plaintiff's claim over an allegedly defamatory blog post was dismissed on summary judgment. The decision is also of interest for Judge Peter Annis' discussion on how to "remove the sting" of internet postings, and the application of the fair comment defence. Matthew Nied has also posted a more concise summary of the case on his site.
I'm a progressive immigrant with annoying views. I have a trade-union background, and an academic one too…
The defendants Connie Fournier and Mark Fournier operate the the notorious political website, FreeDominion.ca, which is a site that describes itself as "The Voice of Principled Conservativism." The site has been the target of at least one Human Rights Commission complaint, and was involved in litigation in recent years over Richard Warman. The site is considered controversial even in conservative circles, and was accordingly described by the plaintiff as,
…an extremely right-wing venue… that has attracted the support and causes of individuals who express racist views…
The third defendant, Roger Smith, is a political blogger who commented on the Free Dominion site on August 11, 2010, under the pseudonym Peter O'Donnell and called the plaintiff "one of the Taliban's more vocal supporters".
The plaintiff claimed the statement was defamatory, especially because he felt that his positions were mischaracterized by Smith,
The basis of the plaintiff's objection is that Mr. Khadr was captured by American Forces when he was fifteen years old and is thus covered by the United Nations Convention of the Rights of the Child and especially Section 7 of the Optional Protocol to that Convention. In other words, he argues the continued detention of Omar Khadr is contrary to international law.
Not surprisingly, this position is shared by a majority of scholars in international law, and is not an unusual position on the subject in Canadian political discourse. When Baglow complained to Connie Fournier and Mark Fournier they refused to remove the offending comment, leading to the Statement of Claim being filed in March 2011.
Effect of Rule 20 Amendments
 Rule 20 was introduced in 1985, and it expanded the court’s jurisdiction to grant a summary judgment from the jurisdiction provided in the former Rules of Practice, which was limited to specially endorsed writs and motions for summary judgment against defendants. The most controversial aspect of the rule has been its test for granting a summary judgment. Between 1985 and 2010, there was an enormous amount of case law interpreting and applying the test.
 Until 2010, when amendments were introduced, the former rule 20.04 (2) provided that the court shall grant summary judgment where the court is satisfied that “there is no genuine issue for trial.” Beginning in January 2010, the amended rule provides for a summary judgment if the court is satisfied that “there is no genuine issue requiring a trial.” The amendment was prompted by the recommendations of the Civil Justice Reform Project, which was chaired by the Honourable Coulter A. Osborne. See Coulter A. Osborne, Civil Justice Reform Project: A Summary of Findings and Recommendations (Toronto: Ontario Attorney General, 2007).
[emphasis in original]
 Rule 20.04 (2.1) is a statutory reversal of the case law that had held that a judge cannot assess credibility, weigh evidence, or find facts on a motion for summary judgment. Further, under rule 20.04 (2.2), a judge for the purpose of weighing the evidence, evaluating credibility, and drawing inferences may order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
 Placed in the context of the other amendments to Rule 20, the purposes of the change from “no genuine issue for trial” to “no genuine issue requiring a trial” in the test for a summary judgment are: (1) to make summary judgment more readily available; and (2) to recognize that with the court’s expanded forensic powers, although there may be issues appropriate for trial, these issues may not require a trial because the court has the power to weigh evidence on a motion for summary judgment.
[emphasis added in this case]
Annis J. acknowledged the plaintiff's submissions that summary judgment is rarely granted in defamation matters because the requisite threshold for defamatory statements is a low one according to the Supreme Court of Canada in Cherneskey v. Armadale Publishers Ltd.
However, citing the Ontario Court of Appeal's affirming ruling in this Healey, Annis J. held that this case was well suited for summary judgment because there was little in dispute of a factual nature as it was largely based on materials taken from various blogs.
Determining whether words convey a defamatory meaning is a question of law according to the Ontario Court of Appeal in Color Your World Corp. v. Canadian Broadcasting Corp., which would therefore be appropriate for a summary judgment motion.
Assessing Defamatory Words in Blogs
Annis J. applied the Supreme Court decision in WIC Radio Ltd v. Simpson to determine whether the blog posts was a statement of fact rather than a comment or opinion, as statements of fact are generally more capable of damaging someone's reputation because it is more likely to be believed by the public.
He held that the post was not a statement of fact, but emphasized that the court should not focus on isolated passages when determining defamatory content, and should instead look at the publication as a whole. Statements of fact may properly be construed in pith and substance as comment when determined from the perspective of a reasonable reader, especially in the political context.
In this case, Smith's comments occurred within a larger political debate between the parties, which included multiple posts by the plaintiff,
 Accordingly, the alleged defamatory attribution of the plaintiff (supporter of the Taliban) is the comment portion of the defendant Smith's unstated factual premise that the plaintiff's views on due process have the effect of supporting the Taliban.
[emphasis in original]
Annis J. held that this statement was at the absolute border of a comment that would diminish esteem in the mind of a reader, but in political blogs insults are a regular part of the debate.
He distinguished the case from WIC in that there was definitional ambiguity here over what support of the Taliban actually entails, and cited Colour Your World and the B.C. Court of Appeal in Scott v. Fulton to demonstrate that the court should avoid putting the worst meaning on words.
He pointed to Smith's comments that upholding principles of international law would have the effect encouraging the Taliban to use more child soldiers, irrespective of any moral support or the lack thereof for the Taliban. Readers of the comment in question would understand the context of the statement as being one side of a debate, and was therefore not defamatory in nature.
Removing the Sting of Blogging
Despite holding that the comment was not defamatory, Annis J. continued to discuss further contextual factors that he felt should be taken into consideration in Internet defamation cases,
 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.
 This distinguishes the context of blogging from other forms of publication of defamatory statements. One exception couId be the live debate, of which blogging constitutes the modem written form.
 I am not suggesting that defamation can never occur in a live debate. I do say however, that the live debate forum should be considered as a contextual factor to determine whether the statement is defamatory in so far as whether it is complete.
He indicated that a simple rejoinder could help remove the "sting of libel" and minimize some of the harm that may have occurred to his reputation because in this context the reader actually expects a response as part of the ongoing debate, but was very clear about expressing that he was not suggesting a requirement for mitigation,
 I realize that this sounds like a form of defence of mitigation of a defamatory comment. But I see it more as an uncompleted comment, something akin to a plaintiff arguing that he or she has been defamed by a question, when the response was what the audience was expecting.
 Bringing an action on the comment in mid-debate runs contrary to the roles 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.
 A statement is not derogatory when made in a context that provides an opporturrity 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.
Smith's comment was generally consistent with the type of language being engaged in by both sides in the ongoing debate. Annis J. noted that the plaintiff had previously made his own insulting comments to the Fourmiers and others on the other side of his debate, and made no attempt to respond to Smith's post aside from an anonymous comment indicating that the statement was defamatory.
Law of Fair Comment
Annis J. continued further to discuss the defence of fair comment test as applied in WIC and the more recent Supreme Court of Canada case in Grant v. Torstar Corp., despite already finding that the statement was not defamatory:
- the comment must be on a matter of public interest;
- the comment must be based on fact;
- the comment, though it can include inferences of fact, must be recognizable as comment;
- the comment must satisfy the following objective test:
- could any person honestly express that opinion on the proved facts?; and
In finding that there was no issue with the first four parts of the test, he applied the express malice test expressed in the recent B.C. case of McVeigh v. Boeriu:
- A comment is malicious if it is knowing it was false; or
- It was made with reckless indifference 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.
He pointed to the statement of the plaintiff as indicative of the mutual political contempt between the parties, rather than personal or inherent express malice,
…I do not deny that the Defendants and I are ideological adversaries and opponents in the blogosphere. I do not know the defendants personally, and so my derision, scorn and contempt for them. can only be for their opinions and actions as evidenced by their postings.
He held that the party seeking summary judgment has the onus of showing a genuine issue concerning malice, and since this was not made out by the plaintiff on the motion the defendants could rely on the defence of fair comment even if the statement was found to be defamatory.
Limitations of this Decision
Clearly the most unique element of this decision is the contextual analysis that includes "removing the sting." In the public relations field we strongly caution against those targeted in defamatory blog posts from responding to them directly unless warranted by special circumstances, which is why I agree with the statement made by Nied,
…the Court’s comments should not be read to suggest that persons defamed on the internet should necessarily enter the fray and respond to defamatory comments if given the opportunity to do so. The allegedly defamatory statements in this case were made in the context of an acrimonious debate in which the plaintiff was found by the Court to have participated. This is distinguishable from circumstances in which a plaintiff finds themselves defamed by statements made on a blog or message board in which they have not participated. In these cases, the context of the comment from the perspective of the reasonable reader will not be one that anticipates a rejoinder. It may be advisable for victims of internet defamation in these circumstances to avoid responding to defamatory comments in order to avoid inviting further attention to the matter and increasing the harm to their reputation.
The political context of this debate is also worth noting, and would not apply in the same manner in a personal or commercial dispute.
The court rejected submissions by the plaintiff attempting to distinguish Smith's comment from the label of "Taliban Jack" provided by conservatives to the late Jack Layton, and said,
 …No reasonably informed Canadian would conclude that Mr. Layton was defamed by being called Taliban Jack, understanding that this was simply a catchy label attached to him by conservatives to showcase what they consider the weakness of the liberal argument in this political debate.
If this "catchy label" or Smith's comment was applied to someone who could reasonably be construed to be an actual supporter of the Taliban, whether due to presumed national background, shared faith, or other discernible characteristics (even if erroneously made), these exact same opinion statements should objectively find themselves on the other side of the borderline of a comment that would diminish the esteem of an individual, especially if made outside of the context of an ongoing debate. This would not be an example of the court putting the worst meaning on words, because feelings of hatred, contempt, ridicule, fear, dislike or disesteem are entirely foreseeable when an association is made with a party that the country is at war with, and who is identified on the entities list. (n.b. The Taliban is not expressly mentioned on the entities list, but components of them like Gulbuddin Hekmatyar and his Hezb-e-Islami are).
Finally, it is worth noting that many supporters of the Free Dominion website frequently hold the position that absolutely none of the speech they engage in should be subject to civil litigation. Consequently, the defendants consequently sought "An order dismissing the action on the grounds that it is frivolous or vexatious or is otherwise an abuse of the process of the court pursuant to Rule 21.01(3)(d)." The court refused to entertain these pleadings in the judgment, suggesting that a role of the courts may still exist in mediating even political speech where defamation may have occurred, and plaintiffs should not be deterred from pursuing these claims where some merit may exist.