Dr Dawg wins on appeal

Baglow v. Smith, 2012 ONCA 407 was just released. It suggests that summary judgment is not appropriate in an internet defamation case largely because such needs a factual basis impossible to have on summary judgment. The Court writes:

[27]       In this case, the parties have put in play a scenario that, to date, has received little judicial consideration: an allegedly defamatory statement made in the course of a robust and free-wheeling exchange of political views in the internet blogging world where, the appellant concedes, arguments "can be at times caustic, strident or even vulgar and insulting."  Indeed, some measure of what may seem to be a broad range of tolerance for hyperbolic language in this context may be taken from the apparent willingness of the appellant to absorb the slings and arrows of the "traitor" and "treason" labels without complaint.

[28]       Nonetheless, although the respondents come close to asserting – but do not quite assert – that "anything goes" in these types of exchanges, is that the case in law?  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?  For that matter, do different considerations apply even within publications on the internet – to a publication on Facebook or in the "Twitterverse", say, compared to a publication on a blog? 

[29]       These issues have not been addressed in the jurisprudence in any significant way.  The responses may have far-reaching implications. They are best crafted on the basis of a full record after a trial – at least until the law evolves and crystallizes to a certain point – in my view.  A trial will permit these important conclusions to be formulated on the basis of a record informed by the examination and cross-examination of witnesses and quite possibly with the assistance of expert evidence to provide the court – whose members are perhaps not always the most up-to-date in matters involving the blogosphere – with insight into how the internet blogging world functions and what may or may not be the expectations and sensibilities of those who engage in such discourse in the particular context in which that discourse occurs.

[30]       Although made against a slightly different background – whether a statement made using a microphone at a public rally was in law a libel or a slander – the observations of this Court in Romano v. D'Onofrio (2005), 77 O.R. (3d) 583 confirm that novel questions of law or of mixed law and fact in defamation matters ought generally to be determined at a trial.  At paras. 7 and 9, the Court, citing R. D. Belanger & Associates Ltd. v. Stadium Corp. of Ontario Ltd. (1991), 5 O.R. (3d) 778, observed that "'matters of law which have not been settled fully in our jurisprudence should not be disposed of at this [interlocutory] stage in the proceedings'" because they involve a "type of interpretative analysis [that] should only be done in the context of a full factual record, possibly including appropriate expert evidence."

[31]       These considerations are particularly significant in relation to several of the issues here.  First, whether the words "this coming from one of the Taliban's more vocal supporters" are in fact defamatory of the appellant depends upon a careful analysis of the context in which the statement was made, including not just a review of the electronic dialogue between "Dr. Dawg" and "Peter O'Donnell," which the motion judge had before him, but also an assessment of the two individuals and the view they took of the exchange – something that requires at least cross-examination on the positions they initially put forward. The analysis further requires a consideration of the view that a reasonable reader of the exchange may take of the exchange in the context, an issue that might well require some expert testimony for resolution as noted above.  For similar reasons, I am not convinced that either the issue of whether the impugned words constitute "comment" or "fact" or the issue of malice in relation to the defence of fair comment can be resolved at this stage.  They both require a delicate balancing of the factual context in its entirety for determination.

[32]       On the issue of malice alone, I am not persuaded that the fact "Dr. Dawg" and "Peter O'Donnell" did not know each other personally and only communicated via the internet is dispositive.  Determining actual and express malice often requires that the trier of fact draw inferences from proved facts. Often, proof of malice is found beyond the four corners of the publication at issue.