Canada: All's fair in blogs on war

20 Sep 11 | Uncategorized

This is a guest post by Catherine Tsalikis

The advent of the world wide web has necessitated a shift in legal thinking with regards to cases of libel. In Baglow v. Smith, 2011, an Ontario Superior Court justice has issued a decision with significant effects for Canadian free speech rights pertaining to blogs and other internet forums which host political debate and discussion.

Justice Peter Annis has dismissed a defamation claim brought by Ottawa’s John Baglow, former executive with the Public Service Alliance of Canada and left-wing commentator (known in the blogosphere as  “Dr Dawg”). Baglow’s action was brought against Connie and Mark Fournier, operators of right-wing blog FreeDominion, and right-wing blogger Roger Smith (aka “Peter O’Donnell”).

In a manner common to exchanges between ideologically-opposed commentators, Baglow v. Smith arose from an escalation of online quips and jabs, during which Smith ultimately described Baglow as “one of the Taliban’s more vocal supporters”. The basis for this assertion stems from Baglow having previously argued in support of the repatriation of Omar Khadr from Guantanamo Bay to Canada, and having criticised the Canadian government for failing to uphold international law through the United Nations Convention of the Rights of the Child.

Of course, it is a long leap from Baglow’s criticism of Khadr’s treatment to the conclusion that the blogger is an adamant supporter of terrorist groups.  Nonetheless, Annis J found in his summary action that there was no issue for trial, noting that, even accepting the low threshold standard for libelous statements, “declaring someone a supporter of the Taliban is at the absolute borderline of a comment that could be said to diminish the esteem of the plaintiff in the minds of readers of a political blog where insults are regularly treated as part of the debate.”

Furthermore, Smith’s words were not intending to state a known fact, but rather his own view – opinion comments are considered to be less serious in defamation cases. Annis J concluded that “the opinion expressed by the defendant lies at the heart of the debate between the factions represented by the parties and whether the underlying facts are true or not, readers following the blog would understand the comment as being one side of the debate”.

Significantly, followers of defamation law are touting this case as groundbreaking in the realm of online free speech, gleaning that Annis J’s decision points to a different standard of defamation between statements made on blog forums and those made in other, more permanent print material. Indeed, the decision suggests that the contemporaneous nature of online debate allows recipients of written attacks to “take the sting” out of potentially libelous comments by responding quickly. Baglow could have responded to Smith’s “Taliban supporter” label by defending himself as the online community would usually expect bloggers to do in these heated, back-and-forth exchanges, but instead chose to resort to legal means.

More generally, Canada has indeed seen advancements in free speech guarantees. Following a Supreme Court decision in 2009, journalists and bloggers are now able to use the defence of “responsible communication on matters of public interest” as a defence against libel. Of course, in this case, Smith’s statement wasn’t found to be libelous in the first place, so one would perhaps be too quick to claim that this decision unequivocally means that anything — or at least more — goes in the blogosphere. Crude, vulgar and boorish commentary is a staple of many online forums, but we would have to wait for a case involving a truly libelous statement to better judge whether the Canadian standard of defamation has been lowered for cyber-speak.

In the meantime, John Baglow has announced on his blog his intention to appeal the decision to the Ontario Court of Appeal.

Catherine Tsalikis is an editorial assistant for The World Today magazine at Chatham House