The Ontario Superior Court in Baglow v.
Smith1 has summed up the Internet blogging world
"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.2
The decision which follows this apt quote involved an action for
defamation brought by an individual against the moderators of an
online political forum.
Expanding on the relatively small amount of Canadian
jurisprudence on Internet defamation, the Court found that the
defendants, who were moderators of a political message board, were
liable as a publisher for the purposes of defamation.
The defendants operated an online message board called
"Free Dominion" where a user referred to the plaintiff as
a supporter of a terrorist group. The plaintiff requested that the
defendants remove the content but they refused and the plaintiff
brought the action for defamation.
To establish defamation, the plaintiff is required to show the
that the impugned words were defamatory, in the sense that they
would tend to lower the plaintiff's reputation in the eyes of a
that the words referred to the plaintiff; and
that the words were published.
The Court found that the above elements (1) and (2) were met but
of most interest is the analysis relating to element (3); i.e.,
whether the words were "published" by the defendants who
moderated the online forum.
The Court distinguished the present circumstances from those in
the Supreme Court of Canada ("SCC") decision in
Crookes v. Newton,  S.C.J. No. 269
("Crookes"). There, the SCC held that the mere
posting of a hyperlink to defamatory content did not constitute
defamation as hyperlinks are mere references and do not communicate
or publish the content.3
In the present case, the defendants were moderators and
administrators of the forum. They were not passive
"bystanders" but made posts themselves and participated
in threads.4 They were also able to control the content
on the forum and delete posts or ban users (this was supported by
they rarely deleted comments). In finding that publication had
occurred, the Court noted that a "message board or forum is
set up precisely to provide content to its readers. Its whole
purpose is to provide content."5
The Court also highlighted the "delicate" balance
between the value of one's reputation and freedom of
expression.6 A failure in these circumstances to find
that publication had occurred would "leave potential
plaintiffs with little ability to correct reputational damage and
would impair the delicate balance."7
Despite the finding of defamation, and to the expected relief of
the defendants and online forum operators everywhere, the Court
found that the defendants successfully made out the defence of fair
Following this decision, moderators and administrators of online
forums should, if they have not already, consider their potential
liability for defamation. More importantly, they should consider
whether changes in the operation of the forum and the policing of
particular comments can be made to increase the chances of being
able to successfully raise the defence of fair comment.
1 2015 ONSC 1175 ["Baglow v.
2 Ibid, para 1.
3 The SCC in Crookes was of the view that
inserting a hyperlink does not result in control over the content
to which the link points. Hyperlinks and references communicate
that something exists, but do not, by themselves, communicate its
content. Accordingly, a hyperlink itself does not publish the
content, unless the text containing the link is itself defamatory;
e.g., "X is a crook".
4 Supra note 1, para 193.
5 Ibid, para 192.
6 Ibid, para 196.
8 It was held in WIC Radio Ltd. v. Simpson,
 2 S.C.R. 420 that to succeed on the defence of fair comment,
the defendant must prove that: (1) the comment is on a matter of
public interest; (2) the comment is based on fact; (3) the comment,
though it can include inferences of fact, is recognizable as
comment; and (4) any person could honestly express that opinion on
the proved facts. While a plaintiff can defeat the defence of fair
comment by proving that the defendant was actuated by express
malice, there was insufficient evidence in Baglow v. Smith
to support a finding of malice.
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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