Earlier this week, the Ontario Superior Court of Justice released its decision in Baglow v. Smith, 2011 ONSC 5131. The decision suggests that an allegedly defamatory statement made in a debate on blogs or internet forums 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 plaintiff claimed that the defendants defamed him by making statements that exceeded the boundaries of their normally acrimonious political debate on the internet. In particular, the plaintiff complained that the defendants defamed him by branding him “one of the Taliban’s more vocal supporters” on an internet message board. The words complained of referred back to an ongoing discussion, largely on the plaintiff’s blog, where the parties had debated the validity of the trial of Omar Khadr. The parties had aggressively berated each other, and often employed colourful derogatory characterizations. Although the plaintiff had the opportunity to respond to the impugned statements on the internet message board, he did not do so. 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.

Mr. Justice Annis concluded that the impugned statements were not defamatory and granted summary judgment dismissing the action. Significantly, the Court proceeded to remark in obiter 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.” According to the Court, “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.”

In the Court’s view, 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:

[58] Although I am satisfied that the words complained [of] are not capable of damaging the reputation of the plaintiff, I am of the view that there is another contextual factor that would further bolster this conclusion, namely that the alleged defamatory words were made in the context of an ongoing blogging thread over the Internet.

[59] Internet blogging is a form of public conversation. By the back and forth character it provides an opportunity for each party to respond to disparaging comments before the same audience in an immediate or a relatively contemporaneous time frame.

[60] This distinguishes the context of blogging from other forms of publication of defamatory statements. One exception could be the live debate, of which blogging constitutes the modern written form.

[61] I am not suggesting that defamation can never occur in a live debate. I do say however, that the live debate forum should be considered as a contextual factor to determine whether the statement is defamatory in so far as whether it is complete.

The Court suggested that the defamatory sting arising from statements made on the internet may be substantially reduced or eliminated by responding to the statements:

[62] An example that does not in any manner reflect the Court’s views on these issues, but which might serve to explain how derogatory, even defamatory remarks are expected to be parried in a live debate so as to remove the “sting of the libel” and attenuate any threats of diminution of reputation might be as follows:

[The defendant] knows full well that I abhor what the Taliban stand for. His calling me one of their supporters because I think they should be entitled to due process in accordance with International law would be like me calling him (some derogatory descriptor, e.g. “a Nazi fascist”) because he wants to trample the rights that Canadians cherish, etc. [Example provided by the Court]

[63] Given that the plaintiff pleads his belief that “there is a reasonable likelihood of damage to my reputation if it became generally believed that I supported the enemies of the Canadian Forces”, it seems that the tendency of the comment to lower his reputation, particularly when arising in the form of a comment in a debate, could have been quickly nipped in the bud by a simple rejoinder in the fashion described above. This would have had the additional benefit of allowing him to score some points of his own.

The Court’s comments were based on the principle that a statement is defamatory if it tends to injure the reputation of the person to whom it refers by lowering him or her in the estimation of right-thinking members of society: Baglow, at para. 11.  Accordingly, the issue of whether the statements on the blog were defamatory was to be judged through the eyes of its readers:

[64] More importantly to the issue of context, the blogging audience is expecting and would indeed want to hear a rejoinder of this nature where the parry and thrust of the debaters is appreciated as much as the substance of what they say.

[65] In essence, I am suggesting that the Court, in construing alleged defamatory words in an ongoing debate, should determine whether the context of the comment from the perspective of the reasonable reader or listener is one that anticipates a rejoinder, which would eliminate the possible consequence of a statement lowering the reputation of the plaintiff in their eyes.

[66] To some extent the Court is attempting to decide whether the debate should have gone forward, such that walking off the blogging stage, so to speak, is a form of “gotcha” contrary to the rules governing the debate.

[67] I realize that this sounds like a form of defence of mitigation of a defamatory comment. But I see it more as an uncompleted comment, something akin to a plaintiff arguing that he or she has been defamed by a question, when the response was what the audience was expecting.

It appears that the Court’s view was a response, in part, to the concern that the threat of legal action may chill debate on the internet:

[70] Bringing an action on the comment in mid-debate runs contrary to the rules and has the effect of chilling discussion. If allowed, it places the opposing party in a defensive mode, rather than an offensive one, strategically putting that party at a disadvantage.

…

[74] The comment of the defendant Smith was on topic and generally consistent with the language and positions taken in the on-going debate. Accordingly, in no sense was it one that would have had any different effect on the plaintiff’s reputation from other derogatory remarks made throughout the blogs. Like those comments, it should have been answered to remove the sting, if any, and to comply with expectations of readers of these blogs.

It is interesting to note that the impugned statements were made on an internet message board that was distinct from the blogs on which much of the previous debate had occurred. The Court appears to have considered the comments made in all of these forums as a whole rather than concentrating on isolated comments in determining whether the impugned statements were defamatory: Baglow, at para. 27. However, one might question whether the forums had the same audience, and whether a reasonable reader will  anticipate a rejoinder in a place on the internet that differs from the one where the previous debate occurred.

In any event, the Court’s comments should not be read to suggest that persons defamed on the internet should necessarily enter the fray and respond to defamatory comments if given the opportunity to do so. The allegedly defamatory statements in this case were made in the context of an acrimonious debate in which the plaintiff was found to have participated. This is distinguishable from circumstances in which a plaintiff finds themselves defamed by statements made on a blog or message board in which they have not participated. In these cases, the context of the comment from the perspective of the reasonable reader will not be one that anticipates a rejoinder. It may be advisable for victims of internet defamation in these circumstances to avoid responding to defamatory comments in order to avoid inviting further attention to the matter and increasing the harm to their reputation.

Quoted on Slaw, the Heenan Blaikie LLP Entertainment and Media Law Signal, and also posted on the International Forum for Responsible Media.