In introduction to Baglow v. Smith, 2015 ONSC 1175 [“Baglow”], an action for defamation involving political bloggers, Madam Justice Polowin described political debate in the Internet blogosphere as, “rude, aggressive, sarcastic, hyperbolic, insulting, caustic and/or vulgar.” She further stated that, “it is not for the faint of heart.” Baglow is a case around the alleged defamation of the plaintiff through a blog post by one of the defendants. The plaintiff felt that the blog post went “too far” and sought to hold the blog post author, and the moderators of the message board, liable for defamation.
The following is a summary of the facts as laid out by Justice Polowin:
The plaintiff, Dr. Baglow, is the owner and operator of an Internet blog site known as “Dawg’s Blawg” on which he posts left-wing opinions and commentary on political and public interest issues.
The defendants, Mark and Connie Fournier, are a married couple who moderate a message board on the Internet called “Free Dominion”. They describe Free Dominion as a venue for the expression of “conservative” viewpoints.
The defendant, Roger Smith, whose pseudonym in the blogosphere is “Peter O’Donnell”, is a conservative or right-wing commentator who comments or posts frequently on Free Dominion and other blogs including Dawg’s Blawg. On August 10, 2010, Mr. Smith, posting under the pseudonym Peter O’Donnell, posted a lengthy comment on Free Dominion which, among other things, referred to the plaintiff as “one of the Taliban’s more vocal supporters”. The plaintiff objected to this comment as being defamatory and requested that the defendant Fourniers remove it from Free Dominion, which they refused to do.
As a result of the Fournier’s refusal to remove the post, Mr. Smith brought an action for defamation against Mr. Smith and the Fourniers.
This matter first appeared in court in 2011 when the defendants brought a motion for summary judgment before Justice Annis, Baglow v. Smith, 2011 ONSC 5131. Justice Annis granted the motion for summary judgement on the grounds that there was no genuine issue for trial as to whether the comments were capable of being considered defamatory. Further, he found that even if there was a genuine issue for trial as to whether the comments were capable of being considered defamatory, the defendants would be entitled to rely on the defence of fair comment. The plaintiff appealed this decision to the Court of Appeal, Baglow v. Smith, 2012 ONCA 407, and was successful in that appeal.
In the decision, the Court of Appeal held that since there has been little consideration on the questions of:
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… [and] [f]or that matter, do different considerations apply even within publications on the Internet…
these questions would be best determined in a full trial.
At trial, the Fourniers took the position that the impugned words were written, posted and thus published by Mr. Smith. According to the Fourniers, they functioned only as the administrators of the forum and should not be considered to have published the impugned words for the purposes of liability for defamation.
The Fourniers, however, conceded that they were publishers of the post according to the definition provided by the Supreme Court of Canada in Crookes v Newton, 2011 SCC 47 [“Crookes”]:
To prove the publication element of defamation, a plaintiff must establish that the defendant has, by any act, conveyed defamatory meaning to a single third party who has received it. …Traditionally, the form the defendant’s act takes and the manner in which it assists in causing the defamatory content to reach the third party are irrelevant. … There are no limitations on the manner in which defamatory matter may be published. Any act which has the effect of transferring the defamatory information to a third person constitutes a publication.
However, the Forniers took the position that a message board operator is analogous to the publisher of a hyperlink, as in Crookes, and that both technologies are neutral platforms. The Forniers argued that:
holding a message board and its operators liable as publishers for postings by the hundreds of people who post on it daily is an unconstitutional violation of the guarantee of freedom of expression. Operators of forums will be forced to either immediately take down a posting upon complaint or face liability as publishers for writings which they did not write, edit or otherwise have knowledge. Essentially they are requesting this Court to make a finding, as was made by the Supreme Court of Canada in Crookes, that the provider of an interactive computer service should not be liable for user-generated content from third parties.
Madame Justice Polowin disagreed with the Forniers and held that:
It is the position of the Fourniers that the simple provision of software to enable a message board or forum is equivalent to the provision of a hyperlink. The message board itself, the software, is content neutral. In my view this position is disingenuous and ignores reality. A message board or forum is set up precisely to provide content to its readers. Its whole purpose is to provide content.
The Fourniers are the moderators and administrators of Free Dominion. They decided to set up a politically conservative venue in 2001 on the Internet. … The Fourniers are not mere passive bystanders. They make posts themselves and participate in threads.
In my view the reasoning in Crookes is not applicable to the circumstances that present in this case. Moreover I am mindful, as indicated in the Supreme Court of Canada case law set out above, that the law of defamation involves a delicate balance between two fundamental values: the worth and value of an individual’s reputation, which the law of defamation seeks to protect, and the freedom of expression, which the law of defamation inherently limits. The evidence reveals in this case that almost all of the individuals who post or comment on Free Dominion do so anonymously. To adopt the position of the defendants would leave potential plaintiffs with little ability to correct reputational damage and would impair that delicate balance. Therefore I find the impugned words to have been published by both the Fourniers and Mr. Smith.
Nonetheless, in the end, Justice Polowin dismissed the action in favour of the defendants on the basis of the defence of fair comment.
Despite being a decision by a lower Ontario court, Baglow may prove to be a significant decision in three ways. First, Baglow creates a precedent whereby the moderator or creator of an online message board may be held liable for defamation for posts made by a third party. It will be interesting to see how far this is extended, as in Baglow, the moderators were relatively active on their site. It is unclear how this decision would apply to an absent or disengaged site moderator. Also, it is unclear how this would apply to social media or media sharing websites where at least hundreds of thousands of comments are posted each day. Are the site moderators responsible for these?
Second, the Court’s refusal to expand on Crookes may be significant. In Baglow, the Court refused to consider a message board to be analogous to a hyperlink as a message board is created for the purpose of providing content to its readers. It will be interesting to see how courts apply this to other online platforms such as ‘comment boxes’ on websites or the sharing of another’s entry on social media. In addition, it may be argued that a hyperlink and message board should be analogous as it would seem that a hyperlink is also created for the purpose of providing content to its readers.
Third, the Court suggested that the anonymity of a blog poster may be of importance. Justice Polowin stated that, “[t]he evidence reveals in this case that almost all of the individuals who post or comment on Free Dominion do so anonymously. To adopt the position of the defendants would leave potential plaintiffs with little ability to correct reputational damage.” This suggests that future courts might only choose to find moderators liable of defamation for third party posts where the identity of the poster is unknown.