In September 2011 we had a post about Baglow v Smith, a potentially very significant decision in Canada. The first instance decision of Annis J suggested that an apparently defamatory statement made in a debate on a blog or internet forum may not be found to be defamatory if the plaintiff previously engaged in the debate but did not respond to the statement despite having the opportunity to do so.
The decision attracted widespread approving comment. We draw attention, for example to the following: “Canada: All’s fair in blogs on war“, “Libel ruling unleashes bloggers“, “Baglow v. Smith: Difference Between Defamation and Free Speech“.
When the issue of costs was determined Annis J took the opportunity to further clarify the basis for his ruling that the defendant’s statement was not defamatory:
[4] My decision on the defamatory nature of the words rested principally on the ambiguous nature of the term “supporter” such that in the general context of the blogging dialogue, and without regard to the “public conversation” issue, the comment did not meet the threshold for establishing defamation.
[5] Secondly, I concluded that even were the comments defamatory, they were protected as constituting fair comment.
[6] In addition to those two bases for granting summary judgment, I found that the “public conversation” nature of the dialogue was a further ground to conclude that the comments were not defamatory. It was my view that the context of this Internet blog anticipated a reply to the comment to remove the “sting” of the libel.
There was a post about the costs decision on the Slaw blog.
The plaintiff appealed against Annis J’s decision and that appeal was heard by the Court of Appeal in Ontario on 13 March 2012. Judgment was reserved. It seems likely to provide welcome clarification on this issue. There is a post about the case on the Canadian blog, “The Court”.
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