Baglow v Smith: Appeal Court Sets Aside Summary Judgment and Orders Trial

A further development in what could become a precedent-setting case involving online political discourse and blogs: the Ontario Court of Appeal has set aside the order of summary judgment in Baglow v Smith and has directed the action to proceed to trial.  The Court of Appeal decision (Baglow v. Smith, 2012 ONCA 407) can be found here and the set-aside lower court decision (Baglow v. Smith, 2011 ONSC 5131) can be found here.  Previous discussion at the Signal regarding this case can be found here and here.

To recap: the case is noteworthy because it concerns the nature of a defamatory statement in the context of political blogging.  In this dispute, the plaintiff sued for defamation as a result of being described as a supporter of the Taliban.  The case has a somewhat peculiar procedural history: the initial decision of the court to award summary judgment to the defendant (discussed in detail here) seemed to be based on a determination that the purportedly defamatory words were not actually capable of defamatory meaning (i.e., “not capable of damaging the reputation of the plaintiff” [para. 58]), a conclusion which seemed to be largely informed by the context in which the defamatory words had taken place: namely, online political blogs and moderated forums.  As I mentioned at the time of the initial decision:

it demonstrates the continued advance of the tendency of courts to take full account of the context in which allegedly defamatory comments are made. At the risk of over-simplifying the matter, the court’s decision can be summarized as this: there is something meaningfully different about online statements, particularly those which are made on political blogs and discussion forums, which militates that they be treated differently for purposes of defamation law. Put somewhat differently (and, again, with the qualification that this over-simplifies matters): impugning someone’s name on the broadcast evening news is different from impugning their name on a blog.

The same judge, however, in the decision regarding the awarding of costs (discussed here), indicated that his initial decision had been somewhat misconstrued – though as I pointed out at the time, even in the clarification the judge stressed that his conclusion as to the lack of defamatory meaning “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].

Nevertheless, whatever the proper interpretation of the decision to grant summary judgment, it has now been set aside by the Ontario Court of Appeal, and the matter ordered to trial.  The critical elements of the appellate decision:

  • because the dispute raises “important issues” regarding defamation on the web (particularly “in the relatively novel milieu of internet defamation in the political blogosphere”), the matter is not one which is suitable for determination on a motion for summary judgment – in other words, a full trial is warranted
  • as a general matter, “novel questions of law … in defamation matters ought … to be determined at a trial”
  • the question of whether the impugned words were defamatory requires cross-examination of the concerned parties and “possibly expert testimony”
  • displaying their usual dry wit, the judges note that expert testimony may be needed “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 appellate decision also takes particular time to reject a possible implication of the trial decision, namely that an absence of rejoinder on a participatory forum can lead to a conclusion that a particular statement was not defamatory (in other words, a rule saying that a failure to respond to a slur somehow constituted a waiver of rights in respect of that slur could be a very dangerous rule indeed)

I will close with this extensive quote from the appellate decision, since it provides a flavour of the types of issues which are engaged in this case:

“[27] In this case, the parties have put in play a scenario that, to date, has 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.” Indeed, some measure of what may seem to be a broad range of tolerance for hyperbolic language in this context may be taken from the apparent willingness of the appellant to absorb the slings and arrows of the “traitor” and “treason” labels without complaint.

[28] Nonetheless, although the respondents come close to asserting – but do not quite assert – that “anything goes” in these types of exchanges, 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?”

Stay tuned!

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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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