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Turmel v CBC (Dragon’s Den): Leave to SCC Denied

Following up on a story we discussed earlier this year (Turmel v CBC (Dragons’ Den) – Enforceability of Depiction Releases), the Supreme Court of Canada has denied leave to appeal to the plaintiff in the case of Turmel v CBC (Dragon’s Den) (trial decision here: 2011 ONSC 2400; court of appeal decision here: 2011 ONCA 519).  That caps what is an important decision for Canadian entertainment lawyers, as it confirms the enforceability of signed “depiction releases”, particularly the enforceability of clauses which waive any right to sue for depictions which might be “disparaging, defamatory, embarrassing or of an otherwise unfavourable nature which may expose me to public ridicule, humiliation or condemnation”.

Turmel v CBC (Dragon’s Den): Leave to SCC Denied

Crookes v Newton – More Follow-up Commentary

Since October’s Supreme Court of Canada decision in Crookes v. Newton 2011 SCC 47 (for previous Signal discussion on the topic, see here) there has been an outpouring of news stories and commentary, and I thought it useful to highlight the following items:

  • Paul Schabas and Jon Goheen offer a detailed consideration of the case (Supreme Court of Canada Protects Hyperlinkers), concluding: “the decision should deter many potential libel actions against bloggers and Internet forum operators in Canada, who can now rest assured that they will not be responsible for links to defamatory material unless they repeat the defamation or author new defamation”
  • Tamir Israel offers even more detailed thoughts on the Crookes decision and the issue of intermediary liability (for such matters as copyright infringement): Crookes v Newton – Speculations on Intermediary Liability (also worth reading is the discussion in the comments to the post)

Crookes v Newton – More Follow-up Commentary

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.

Baglow v Smith – Court Clarifies Its Ruling

Correcting Media Errors in a Digital Environment

The Ethics Advisory Committee of The Canadian Association of Journalists has published their Best Practices in Digital Accuracy and Corrections, which seek to provide guidance for online implementation of the CAJ’s ethical principle that “When we make a mistake, we correct it promptly and ungrudgingly, and in a manner that matches the seriousness of the error.”  The guidelines include some thoughtful discussion regarding how the goal of “accuracy” should be achieved in a digital environment.

The guidelines identify three applicable principles:

1.Published digital content is part of the historical record and should not be unpublished.

2. Accuracy is the foundation of media credibility.

3. Transparency demands that we are clear with audiences about changes that have been made to correct/amend or update digital content.

Further, the guidelines identify three areas in which best practices can be implemented:

  • helping readers report errors
  • transparency in corrections
  • placement of corrections

The guidelines also discuss the interaction between legal liability and corrections (such as with respect to defamation claims – in Ontario, Section 5 of the Libel and Slander Act effects a mitigation of damages for newspaper or broadcast libels where a retraction (meeting the prescribed requirements) has been published.

Correcting Media Errors in a Digital Environment

Crookes v Newton – Follow-up Commentary

In the wake of this month’s Supreme Court of Canada decision in Crookes v. Newton 2011 SCC 47 (for previous Signal discussion on the topic, see here) there has been an outpouring of news stories and commentary, and I thought it useful to highlight the following items:

Crookes v Newton – Follow-up Commentary