ONCA Overturns Summary J in Baglow v. Smith

Earlier today, the Ontario Court of Appeal overturned the summary judgement decision in Baglow v. Smith, which dismissed the online defamation action in the context of political blogs. The case was previously summarized on Slaw before here, with costs decision mentioned here, and additional commentary here.

Today’s decision will allow the action to proceed to trial.

The key excerpts of the decision follows:

[23] The issues raised in this action are all important issues because they arise in the relatively novel milieu of internet defamation in the political blogosphere. However, they are not issues that lend themselves to determination on a motion for summary judgment in circumstances such as this, in my view, particularly where the action is being processed in the simplified procedure regime…

[27] In this case, the parties have put in play a scenario that, to date, has received little judicial consideration: an allegedly defamatory statement made in the course of a robust and free-wheeling exchange of political views in the internet blogging world where, the appellant concedes, arguments “can be at times caustic, strident or even vulgar and insulting.” Indeed, some measure of what may seem to be a broad range of tolerance for hyperbolic language in this context may be taken from the apparent willingness of the appellant to absorb the slings and arrows of the “traitor” and “treason” labels without complaint.

[28] Nonetheless, although the respondents come close to asserting – but do not quite assert – that “anything goes” in these types of exchanges, is that the case in law? Do different legal considerations apply in determining whether a statement is or is not defamatory in these kinds of situations than apply to the publication of an article in a traditional media outlet? For that matter, do different considerations apply even within publications on the internet – to a publication on Facebook or in the “Twitterverse”, say, compared to a publication on a blog?

[29] These issues have not been addressed in the jurisprudence in any significant way. The responses may have far-reaching implications. They are best crafted on the basis of a full record after a trial – at least until the law evolves and crystallizes to a certain point – in my view. A trial will permit these important conclusions to be formulated on the basis of a record informed by the examination and cross-examination of witnesses and quite possibly with the assistance of expert evidence to provide the court – whose members are perhaps not always the most up-to-date in matters involving the blogosphere – with insight into how the internet blogging world functions and what may or may not be the expectations and sensibilities of those who engage in such discourse in the particular context in which that discourse occurs…

[38] In the process of arriving at his conclusions, the motion judge found that the impugned words were not defamatory because, having been made in the heat of what the motion judge saw as the modern-day equivalent to a live debate, a reasonable reader would have anticipated a rejoinder by the appellant, and in the absence of such a rejoinder, the statement could not be seen to have lowered the reputation of the plaintiff in the eyes of such a reader. I would not want the failure to deal with that conclusion to be taken as acceptance of it. That too, it seems to me, is an issue that needs to be fleshed out at trial, quite possibly, again, with the assistance of expert testimony.

Comments

  1. David Collier-Brown

    In the early (usenet) days, this same kind of robust discussion, then referred to as “flamefests”, was broadly considered unworthy of suit.

    If someone proposed an action, the usual term of art was the “right of reply”. Since the flaming was in an unrestricted discussion group, the person offended could reply, in as offensive a style as they liked.

    The assumption then, in what was predominantly the US and Canada, was that a defamation suit would be lacking some critical element…

    On the face of it, this seems a similar case. It will be interesting to see if the ability to reply plays a part.

    –dave