Blog debate defamation: Baglow v Smith 2011 ONSC 5131, Ontario Superior Court of Justice, Canada

Omar Khadr is a Canadian David Hicks. As a 15 year old, he was captured by American troops in Afghanistan, and he now lives in Guantanamo Bay.

In the Canadian political “blogosphere”, Dr Dawg is a left-leaning blogger who believes that Khadr is being tried contrary to international law. He operates a left-leaning blog called “Dawg’s Blawg” and is the plaintiff in this case.

On the other side of the ring is the defendant, also known as Peter O’Donnell, who operates a conservative blog called “Free Dominion.”

The pair engaged in a “debate” on the Free Dominion Internet Message Board. This circulated around Khadr and Canada’s involvement in the war in Afghanistan. Like any good internet “debate”, it involved a certain amount of vitriol. For instance, the plaintiff called the defendant’s blog “Free Dominatrix”, and his followers as “yokels with pitchforks”. In turn, the defendant said that the plaintiff and his Ontario Liberals should secede from Canada, that they were a bunch of traitors and guilty of treason. But none of this was the problem. It was this statement where the plaintiff contended that the defendant had gone too far:

[the plaintiff] was “one of the Taliban’s more vocal supporters.”

The plaintiff requested it be removed from the website, it was not and the plaintiff sued.

The defendant brought an application for summary judgment, claiming that the words were not defamatory of the plaintiff and alternatively claiming they were fair comment.

Justice Aniss agreed with the defendant. In the course of the judgment made a number of interesting obiter remarks, including:
• “[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 timeframe.”;
• “[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.”

So online debate is an important context when considering whether words are defamatory or not. This would appear to raise all sorts of issues. Query whether a potential plaintiff should reply to a defamatory attack that appears on a blog.

It seems that if the plaintiff is already in the debate, then they should reply, because the audience expects a “rejoinder” and the plaintiff could nip the attack “in the bud” (see para 63). But if they are not in the debate, perhaps best to leave it alone. It depends on what the readers would expect. In any event, the case is a ground-breaking one and will undoubtedly be referred to in future. Especially note for internet cases where a defendant might claim a reply to attack defence at common law, all of these comments will assist