Defamation of blogger was ‘fair comment,’ judge rules
A Superior Court judge has ruled that although Ottawa blogger Dr. Dawg was defamed on a conservative message board, the hurtful words fell within the bounds of fair comment in the rough and tumble blogosphere.
“Political debate in the Internet blogosphere can be, and often is, rude, aggressive, sarcastic, hyperbolic, insulting caustic and/or vulgar. It is not for the faint of heart,” Justice Heidi Polowin noted in dismissing the legal claim.
The decision is among the first to establish the legal boundaries in Canada’s blogosphere, where the battle between left and right often devolves into flame wars.
The ruling concludes the political blogosphere must be governed by existing laws, but it also recognizes the Internet is a place of strongly worded opinion and hyperbole, where fair comment should be given a broad interpretation.
Cara Zwibel, director of the fundamental freedoms program at the Canadian Civil Liberties Association, an intervener in the case, said the ruling does not significantly depart from the established principles of defamation law. Although no new legal exceptions have been carved out for political blogs, she said, it does acknowledge that “the way expression happens in some of these forums is different.”
In her ruling, Polowin found that John Baglow, an Ottawa blogger known as Dr. Dawg, had been defamed by an August 2010 chatroom post that referred to him as “one of the Taliban’s more vocal supporters.”
The statement was made on the Free Dominion website by Roger Smith, of Burnaby, B.C., in the course of an acrimonious debate about federal politics and the treatment of Canadian Omar Khadr, then a Guantanamo inmate.
In finding the words to be defamatory, Polowin rejected the argument of Free Dominion’s founders, Mark and Connie Fournier, who said they should not be held legally responsible for the messages that other people post on an open Internet platform. That position was supported by the Canadian Civil Liberties Association, which argued that holding website administrators liable for the content of message board postings would impair the free exchange of ideas on the Internet.
Polowin, however, said defamation law must balance two fundamental values: the worth of an individual’s reputation and freedom of expression. “To adopt the position of the defendants would leave potential plaintiffs with little ability to correct reputational damage and would impair that delicate balance,” she wrote.
The Fourniers also argued that the statement was not defamatory in the context of the political blogosphere, where profanity, insults and invective run wild. But Polowin rejected the notion that the Internet is too unruly to be governed by conventional defamation law.
“Implicit in their submissions is that based on the rough and tumble nature of these media platforms there would be little, if anything, that would tend to lower the plaintiff ’s reputation in the eyes of a reasonable reader. However, there is nothing in the law of defamation to suggest that that is the case.”
Polowin concluded that Baglow’s reputation was damaged by the suggestion that he was a Taliban supporter. The judge, however, accepted the Fourniers’ argument that the defamatory words could be defended as fair comment in the blogosphere.
Fair comment can be used as a defence when the words at issue are based on fact and honestly expressed on a matter of public interest.
Baglow argued that Smith’s words were expressed, not as comment, but as a statement of fact. Polowin, however, said the impugned words appeared in the course a political diatribe. “The post itself was rambling, if not incoherent, touching on a number of different topics. It was in essence a rant, with Mr. Smith giving his views and opinions on any number of issues, none too clearly.”
The judge said Smith was commenting on a matter of public interest — the Khadr case — and honestly held the belief that anyone who supported the teenager, an enemy combatant in Afghanistan, supported the Taliban.
Polowin decided against awarding costs to either side in the bitterly fought case.
Baglow, a left-wing political blogger and former executive with the Public Service Alliance of Canada, called the ruling a split decision. “If one has to lose a lawsuit, this is probably the way to lose it,” he said.
Baglow said the judge found that he was defamed and endorsed many of the principles for which he was fighting.
“The fact the blogosphere is not a place where rules are suspended — that the same law applies to them as to any other media — I think that’s a good thing to establish,” he said. “It means it’s not the Wild West out there.”
Connie Fournier, a computer programmer who lives in Kingston, said she was pleased with the outcome of the case. “I hope people will calm down when it comes to trying to sue each other over things said online,” she said. “Because you are not going to change the culture: The culture is what it is.”
Online commenters, Fournier said, are likely to write things they would not say in person since “they’re sitting at their computers, they’re uninhibited — and they’re probably having a beer while they do it.”
Neither side has any plan to appeal the judgment.