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Key ruling on online libel heads to appeal court this week

|Written By Glenn Kauth

A key case dealing with libel on the Internet is headed to the Ontario Court of Appeal this week.

Lawyer Peter Burnet of Ottawa’s Jones Horwitz Bowles Burnet will be making arguments on behalf of appellant John Baglow before the appeal court this week in Baglow v. Smith. Baglow is objecting to Superior Court Justice Peter Annis’ ruling last August granting summary judgment in favour of defendants Rogers Smith and Connie and Mark Fournier.

The case deals with comments on the web site FreeDominion calling Baglow, who has his own progressive political blog called Dawg’s Blawg, “one of the Taliban’s more vocal supporters.” In the ruling, Annis noted Baglow had argued in favour of repatriating Omar Khadr to Canada from Guantanamo Bay, Cuba, and was an opponent of Canada’s military engagement in Afghanistan. In 2010, following Baglow’s calls for a federal election to oust the Conservative government, Smith made the comments about the Taliban on FreeDominon.

In his ruling, Annis considered whether the comment was a statement of fact or opinion. In ruling it was opinion, Annis focused on the ongoing back-and-forth nature of blog discussions. “In its pith and substance, when the defendant Smith’s statement is considered in its context of an ongoing thread on an Internet blog, it is properly understood as a comment about the impact of the application of the plaintiff’s views in terms of supporting the Taliban,” he wrote.

“Accordingly, the alleged defamatory attribution of the plaintiff (supporter of the Taliban) is the comment portion of the defendant Smith’s unstated factual premise that the plaintiff’s views on due process have the effect of supporting the Taliban.”

At the same time, Annis ruled the comments wouldn’t impugn Baglow’s reputation. “Instead, I conclude that the opinion expressed by the defendant lies at the heart of the debate between the factions represented by the parties and whether the underlying facts are true or not, readers following the blog would understand the comment as being one side of the debate.”

The decision raised eyebrows last year in part for what critics said was its distinction between allegedly libellous comments in traditional forums versus online platforms like blogs. However, Annis did later show some leniency to Baglow by reducing the costs award against him given the public interest in raising a novel point of law. The appeal court is to hear the matter tomorrow.


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