Is libel law different online than in print? Or, was a recent Canadian libel suit dismissed just because the comments were opinion?
An Ontario judge dismissed a libel case filed by blogger John Baglow against blogger Roger Smith because the judge, Ontario Superior Court judge Peter Annis ruled that statements blogged shouldn’t be treated the same as “statements made in other forms of publication, the Toronto Star reported.
Smith had called Baglow last year “one of the Taliban’s more vocal supporters.” The comment was made in what the Star described as “a debate that took place over several blogs about the legality of Canadian Omar Khadr’s trial at the American military prison in Guantanamo Bay, Cuba. ”
The judge stated that the Taliban comment was “clearly a statement of opinion” and noted that Baglow could have responded to or denied the comment online, the Star reported.
Baglow, who blogs under the name “Dr. Dawg,” is quoted by the Star as saying:
“The judge talked about the blogosphere as though it were a conversation, but . . . here it’s published and it stays up forever. That’s not like a conversation. There’s always the danger that unless you challenge this sort of thing, people will take it at face value.”
Baglow blogged Aug. 31 on the ruling. He described the judge’s stance as:
“In other words, the blogosphere is a kind of Wild West saloon in which different rules apply, and ordinary law is suspended.”
According to the Ottawa Citizen, Smith made the Taliban comment on a chat website called Free Dominion. The site’s operators, Mark and Connie Fournier, who were also involved in the suit and had “refused” to remove the Taliban comment post, told the Ottawa Citizen that they agree with the ruling.
The ruling is published here on Free Dominion’s website.
StinkyJournalism wrote to Baglow and Fournier for further comment on the case. Baglow told StinkyJournalism he will appeal because “There are many errors in law–one standard for defamation should apply to all media–and fact as well.”
He added: “The judge, not familiar it seems with all Internet traditions, imagines the blogosphere as one big conversation.” Baglow noted that he “simply happened upon the libel–I was not engaged in debate at the blogsite that published it, but in a different debate at my own site with the same individual.”
Fournier told iMediaEthics that she didn’t take down the post in question because the site is “an internet discussion forum” and “not a newspaper…under strict editorial control.” She noted that the “we have always had a policy of moderating the site as little as possible because we want people to think critically when they read and write comments and opinions on the site” and that not only does the site not have the resources to moderate posts, but the site doesn’t want to determine what is or isn’t OK to post.
She added that “the post in question did not even name John Baglow but merely referred to his online alias,” Dr. Dawg. However, she stated the Baglow used “another identity (Ms Mew)” on the discussion and identified that Dr. Dawg is Baglow. She commented that Smith had been making “(worse) comments” on Baglow’s own site. (iMediaEthics asked Baglow about this via e-mail Sept. 16 but hasn’t had any response. We will update with any response.)
iMediaEthics asked Fournier if she was surprised by the ruling. She responded “We thought we had a strong case, but you never know if you are going to get a judge who understands the internet. In this case, we did.”
Fournier added:
“The judge was obviously keenly interested in the issues surrounding this case, and we left feeling pretty confident that he “got it”. We were, however, pleasantly surprised at how much work and thought went into his decision. The judge included very important things in his ruling regarding internet defamation. It is absurd to think that traditional defamation law should be applied to internet forums and blogs.
“Anyone who spends any time at all debating online knows that flame wars erupt continually. If all of those people started suing one another whenever their opponent said anything mean about them, the court system would be completely overwhelmed, and internet debate would become a thing of the past. Nobody is going to risk debating politics online if they know that someone can sue them for saying anything remotely negative. Even if a case is resolved by the court ruling that no defamation occurred, the defendant spends months or years of his life and thousands of dollars defending himself.”
Fournier argued that libel lawsuits have led to “libel chill in the Canadian political blogosphere” but “we find it pleasantly ironic that these attacks on us are ultimately creating law that is protecting freedom of speech on the internet.” Regarding a potential appeal by Baglow, Fournier noted that “of course we just want this to be over,” but if the Appeals Court maintains the ruling “it is a win for internet freedom of speech.”
We asked Fournier if the site has been involved in another lawsuits. She responded that the site is “currently involved in five lawsuits.”
“There isn’t a lot of Internet case law in Canada, but we seem to be getting wrapped up in setting precedents,” Fournier commented. She described some of the current lawsuits:
“The first three were initiated by a government employee named Richard Warman. He sued us because we were discussing his involvement in a scandal involving the Canadian Human Rights Commission. If you google his name, you can read all about that. This lawsuit was the fourth, and Richard Warman has also launched a copyright suit against us.”
“In one of our Warman cases, he took us to court to get IP and email information on John Doe posters. We fought it all the way to Divisional Court where they developed a new test that lower courts are now required to us when deciding whether to order this type of disclosure. One of the factors they are supposed to consider is freedom of expression. You can find that through google, too).”