A Canadian appeal court has decided that the important question as to the application of the law of defamation to a robust and free-wheeling exchange of political views in the internet blogging world was something which is best resolved after a full trial. In a judgment handed down on 14 June 2012 (2012 ONCA 407) the Court of Appeal in Ontario overturned the first instance decision in Baglow v Smith.
Annis J had granted summary judgment to the defendant on the basis 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 Court of Appeal held that this could not be determined on a summary judgment but was best resolved after a trial, perhaps with expert evidence.
The plaintiff, Mr. Baglow owns and operates a blog called “Dawg’s Blawg” on which he posts left-wing opinions on various political and public interest issues using the pseudonym “Dr. Dawg.” The second and third defendants, Mark and Connie Fournier operate and moderate a message board called “FreeDominion”, a site described as a venue for expressing conservative viewpoints. The first defendant, Roger Smith, whose nom de plume in the blogosphere is “Peter O’Donnell”, is a right-wing commentator who comments frequently on FreeDominion and other blogs, including the plaintiff’s.
The plaintiff claimed that the defendants defamed him by making statements on the Free Dominion internet message board. The plaintiff complained that the defendants defamed him by branding him “one of the Taliban’s more vocal supporters”. Although the plaintiff had the opportunity to respond on the message board, he did not do so but rather, sued for defamation. The defendants brought a summary judgment motion to dismiss the action on the basis that the statements were not defamatory or, alternatively, that the defence of fair comment applied.
The first instance decision in Baglow v. Smith, 2011 ONSC 5131 was handed down on 30 August 2011. Annis J concluded that the impugned statements were not defamatory and granted summary judgment dismissing the action. He remarked that the conclusion that the statements were not defamatory was supported by the fact that the statements were made “in the context of an ongoing blogging thread over the Internet” that provided each party with the opportunity to “respond to disparaging comments before the same audience in an immediate or relatively contemporaneous time frame.” He said that,
“a statement is not derogatory when made in a context that provides an opportunity 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.”
The judge said that the fact that the statements were made in the context of an internet debate forum was a contextual factor to consider in determining whether the statements were defamatory.
We had a post about this decision at the time. The decision attracted widespread approving comment. For example there were the following blog posts: “Canada: All’s fair in blogs on war“, “Libel ruling unleashes bloggers“, “Baglow v. Smith: Difference Between Defamation and Free Speech“.
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 and was handed down on 14 June 2012.
In his judgment (with which the other two justices agreed) R A Blair JA said that the issues on the appeal were important because they arose “in the relatively novel milieu of internet defamation in the political blogosphere”.
He pointed out that the scenario being considered had, to date, “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.” 
On the appeal the respondents came close to asserting that “anything goes” in these types of exchanges. The question was, 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?” 
As he pointed out, these issues have not been addressed in the jurisprudence in any significant way and the responses may have far-reaching implications. As a result, it was best to consider them after a trial, with the 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” 
The potential importance of expert evidence was stressed on a number of occasions. In relation to the first instance decision R A Blair J said that
“No expert evidence was tendered concerning the expectations and understanding of participants in blogosphere political discourse. There was simply no evidence as to what the right-thinking person in this context would consider would lower the appellant’s reputation in the estimation of a reasonable reader“.
Taking all these matters into account, a unanimous Court of Appeal held that the various issues which arose needed to be examined at a full trial.
The Court of Appeal have taken a cautious approach in this case, preferring to have a decision on such a potentially wide ranging issue after a full trial. Bearing in mind the importance of the issues this approach is entirely understandable. It is, nevertheless, a little difficult to see what relevant evidence could be heard at such a trial. In general, evidence is not admissible on issues of meaning. If a different approach to meaning is to be taken in the “internet forum” context then this would be a matter of law rather than a matter of evidence.
Although the caution of Court of Appeal judges in relation to issues concerning the internet is understandable it is a little difficult to see what expert evidence would be relevant or admissible in this case. The question was to the expectations or understandings of reasonable readers is not one on which – at least in England – expert evidence would be ordinarily be heard by a court. “The reasonable expectations of internet users” is not an area in which there is a recognised body of expertise – the limits of such expectations might be thought to matters of law and policy rather than something on which experts could assist a court.
This being said it appears that the case will now go to trial and that the parties will seek to call expert evidence to assist the court. We await the result of the trial with interest.
I agree with the judgement. Common sense has to apply. On an Internet blog, the opportunity is there to challenge what has been posted and even ask the blog owner (or whoever is in charge of moderation) to make changes to the comment and get it removed. This case should never have even been heard, but it’s good on one hand as at least there’ll be reference to this if any future cases arise.