Thursday, June 14, 2012

Musings on the Dr. Dawg case

“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? “

Baglow v. Smith, 2012 ONCA 407, para 28

Context is important.  In the Dr. Dawg case a well known left leaning blogger (full disclosure, someone I have dealt with on-line and respect) was called “one of the Taliban’s more vocal supporters” during a flame war.

Without question, if this was a statement made in an opinion piece in, say, the Toronto Star the statement would be actionable.  But the Court raises the question, if on the blogosphere there is a “broad range of tolerance for hyperbolic language” perhaps comments like the one in question are not actionable?

The Court declined to decide saying there weren’t enough facts to conclude one way or the other.

Certainly I get insults on-line that don’t trouble me but would make my blood boil if made face-to-face.  On the other hand, just because someone is left leaning does not mean they are a Taliban supporter (and I note the Taliban are not, shall we say, progressive).

Stay tuned – the case will continue… .


The Rat said...

I think the court also noted that if the Toronto Star prints a defamatory statement you have no ability to respond immediately. If bloggers choose to engage in flame wars, and switch venues as I believe the two in this case did, it seems reasonable to assume there is some level of consent.

If two people go into the parking lot of a bar to fight do we charge the winner with assault?

The Rat said...

Ahh, I see the appeal was heard today and the judge wasn't won over by the earlier judge's statement.

Fred from BC said...

Dr. Poetry accused me of being a racist once on his blog (quickly echoed by most of his little gang of resident butt-kissers). He did so after posting a picture of a petulant-looking, skinny black girl (a model, I assumed) and opining that she was 'sexy'. I begged to differ, and was immediately accused of being a racist/bigot/redneck (all those clever insults that the childish dippers love to toss at any conservative who ventures into range). Baglow didn't bother to ask me *why* I didn't find the girl attractive, of course...'shooting from the lip' has always been his modus operandi (as evidenced by the unusually large number of "updates" he tends to post; most would call them 'corrections' or ''do-overs' or other (less charitable) terms).

(I can't remember now if I even bothered to explain that my wife and I are of different races, or if he even knew what color *I* was. I may have been laughing too hard... :)

Kudos to you though, Mr. Morton, for being a big enough man to allow people to post here who have differing viewpoints than yours. Unfortunately, SOME rather cowardly bloggers either encourage their back-slapping resident gang of sycophants to harass and bully troublesome truth-tellers off their blog, or simply fabricate an excuse to ban them (usually by labelling them as 'trolls', and for no other reason than to save themselves and\or their friends from further embarrassment). Thankfully, most people have more character than that.

James C Morton said...

Thanks Fred

Marky Mark said...


I think among other things the court is saying "don't come to the courts for political disputes unless you're very serious and are going to mount a serious case that explains absolutely everything to us, including bringing in expert testimony as needed." They're going to want to find a way to apply longstanding defamation law to political internet debate and also in the contest of social media mroe generally. I think that means that a court will want to know things like: (s) how many people read the blog and the specific alleged defamatory comment; (b) does the eomment turn up in a search engine applied to the alleged defamed person's real name; (c) how does the comment in question stack up against the general standard of "debate" among the relevant parties and on the blog in question; (d) how does the comment stack up against things the alleged defamed person has said about the alleged defamer and, perhaps, about his/her opponents in other debates? (e) How does one determine damages? and (f) To what extent is there is an element of consent in debates of this nature?

Obviously the list of issues will be much bigger than that, but those things pop out right away. I think the court is signaling that while it wants to uphold principles of defamation law, it doesn't want to be used to arbitrate political debate.

However, from a practical point of viewm, we're not dealing here with a dispute between well off business X suing business Y but rather with a suit involving, one would assume, not that well off or well funded political activists who are individuals and have a lot to lose. As someone who does join the fray in these debates and knows a fair number of the players, I feel bad that in order to be the landmark case they will have to face such financial hardship and wish they could find a principled way out. I wonder if there is an alternate way to settle this dispute and others like it. (Do you want to volunteer....?)

Having said that, based on what the three main players in this one are saying online, the positions are, if anything, becoming more entrenched and I doubt they'd agree to it anyway.

Dr.Dawg said...

James, thanks for your two posts on this.