Baglow v. Smith: Where Robust Debate Ends and Defamation Begins

By Amy Archer – Lerners LLP

As online communication evolves, so too does the potential for the wide spread publication and dissemination of defamatory statements.  In Grant v. Torstar, 2009 SCC 61, the Supreme Court of Canada emphasized the need for the law of defamation to evolve in order to keep pace with the norms of new communications media.  Although Canadian courts have been swift to adapt the law to online modes of publication, many issues must still be addressed. One such issue is the unique impact of statements made in the blogosphere on an individual’s reputation.

In Baglow v. Smith, 2012 ONCA 407 (“Baglow”), the Ontario Court of Appeal unanimously allowed an appeal by the plaintiff blogger from a summary dismissal of his defamation action over a comment made on a political blog.  In August, 2010, the plaintiff and defendant engaged in a debate over a series of strongly worded blog posts relating to the Conservative government and the trial of Omar Kahdr.  Following a heated exchange, the plaintiff sued the defendant for defamation for referring to him as “one of the Taliban’s more vocal supporters.”

The lower court allowed the defendant’s motion for summary judgment based, in large part, on the diminished impact that comments on a political blog have on an individual’s reputation.  The lower court distinguished internet blogs from other forms of publication and found that the statement lacked the “sting of liable” in the context of a political blog “where insults were regularly treated as part of the give and take of debate.”

The Court of Appeal found that the lower court erred in granting summary judgment in the context of the “novel milieu” of defamation in the blogosphere.  In overturning the lower court’s decision, the Court of Appeal found that several issues have not been sufficiently addressed and queried whether different legal considerations should be applied.  Until the law crystalizes, the Court concluded that responses are best crafted on the basis of a full record after trial.

The need to rethink the application of traditional tests to internet communication is largely driven by the unique impact that online publications may have on an individual’s reputation. In order to establish a claim for defamation, a plaintiff must establish, among other things, that the impugned words are defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person.  Context is, therefore, important.

In Baglow, the debate between the plaintiff and defendant was heated and politically charged.  The reference to the plaintiff as a Taliban supporter was made in the course of a series of impassioned statements.  During this exchange, the plaintiff had, himself, referred to supporters of the Conservative government as “yokels with pitchforks.”  Although not part of the plaintiff’s defamation action, the defendant also referred to the plaintiff as a traitor who should be arrested for treason. Indeed, the plaintiff admitted that debates on political blogs can be “caustic, strident or even vulgar and insulting.”

In this context, where insults are freely thrown and tolerated, the Court of Appeal emphasized that an expert may be needed to provide insight into how the internet blogging world functions and what may or may not be the expectation and sensibilities of those who engage in such discourse.
The reasons of the Court of Appeal provide useful insight into the questions that must be addressed in a defamation action for statements published in the blogosphere.  What is an acceptable part of the “robust and free-wheeling exchange of political views in the internet blogging world” and what constitutes defamation has yet to be fully addressed.