Baglow v Smith – Court Clarifies Its Ruling

A couple of months ago we reported on the Ontario Superior Court of Justice in Baglow v. Smith (2011 ONSC 5131).  The decision was noteworthy because it addressed the nature of a defamatory statement in the context of political blogging.  As I noted in the earlier post:

The court dismissed the action, primarily on the basis of a (somewhat convoluted) determination that the statement was not capable of a defamatory meaning (i.e., “not capable of damaging the reputation of the plaintiff” [para. 58]) – but, significantly, the court also stated that “another contextual factor … would further bolster this conclusion, namely that the alleged defamatory words were made in the context of an ongoing blogging thread over the Internet”.  While some have characterized the decision of Mr. Justice Annis in Baglow v Smith as consisting of a ratio (not defamatory) and obiter (took place in the context of an ongoing internet argument), I think the preferable reading is that both of the stated grounds for dismissing the action are part of the same analysis: the words are not defamatory precisely because they were uttered in the context of an online argument.

Justice Annis has taken the opportunity presented by the costs decision in the case (hat tip: Omar Ha-Redeye at slaw) 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.

With respect, I’m not sure that this is much different from what was originally described as the basis of the decision, and the statement still seems to be principally reliant on the nature of the forum in which the statement was made (“[m]y 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 … the comment did not meet the threshold for establishing defamation” [emphasis added]).  It appears to remain the case that, but for the comment having been made online in the context of a political discussion on a political blog and discussion forum, the comment might have been deemed to be defamatory (imagine the statement appearing in a newspaper headline, for example – it would seem the court would take a distinctly different view of whether it was defamatory).

In any event, the decision is evidently under appeal, and so we await the Court of Appeal’s views on the matter.

Bob Tarantino

About Bob Tarantino

Bob Tarantino is Counsel at Dentons Canada LLP and focuses his practice on the interface between the entertainment industries and intellectual property law, with an emphasis on film and television production, financing, licensing, distribution, and IP acquisition and protection. His clients range from artists and independent producers to Canadian distributors and foreign studios and financiers at every stage of the creative process, from development to delivery and exploitation.

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