Wednesday, August 31, 2011

Dr. Dawg defamation decision - Baglow v Fourniers [FREEDOM OF SPEECH WINS]


The Ontario Superior Court of Justice has just tossed out a defamation action by John Baglow (Internet Blogger Dr. Dawg) against Mark & Connie Fournier of FreeDominion.  The Ontario court was very clear when dismissing the allegations put forth by Baglow.  The court dismissed the Defamation Action and ordered Baglow to pay costs to the Fourniers.

A full copy of the Ontario courts decision can be seen here:  http://www.freedominion.com.pa/images/baglow_decision.pdf

In terms of Blogs and online discussions, Mr. Justice Peter Annis, found that:

Removing the Sting of Internet Blogging

[58] Although I am satisfied that the words complained are not capable of damaging the reputation of the plaintiff, I am of the view that there is another contextual factor that would further bolster this conclusion, namely that the alleged defamatory words were made in the context of an ongoing blogging thread over the Internet.

[59] Internet blogging is a form of public conversation. By the back and forth character it provides an opportunity for each party to respond to disparaging comments before the same audience in immediate or a relatively contemporaneous time frame.

[60] This distinguishes the context of blogging from other forms of publication of defamatory statements. One exception could be the live debate, of which blogging constitutes the modem written form.

[61] I am not suggesting that defamation can never occur in a live debate. I do say however, that the live debate forum should be considered as a contextual factor to determine whether the statement is defamatory in so far as whether it is complete.
[…]

[64] More importantly to the issue of context, the blogging audience is expecting and would indeed want to hear a rejoinder of this nature where the parry and thrust of the debaters is appreciated as much as the substance of what they say.

[65] In essence, I am suggesting that the Court, in construing alleged defamatory words in an ongoing debate, should determine whether the context of the comment from the perspective of reasonable reader or listener is one that anticipates a rejoinder, which would eliminate the possible consequence of a statement lowering the reputation of the plaintiff in their eyes.

[66] To some extent the Court is attempting to decide whether the debate should have gone forward, such that walking off the blogging stage, so to speak, is a form of “gotcha” contrary to the rules governing the debate.

[67] I realize that this sounds like a form of defence of mitigation of a defamatory comment. But I see it more as an uncompleted comment, something akin to a plaintiff arguing that he or she has been defamed by a question, when the response was what the audience was expecting.
[…]
CITATION: Baglow v. Smith, 201 1 ONSC 5131
COURT FILE NO.: 10-49803
DATE: 20110830

[Bold and Underline added to above]
Read full ruling [here]


The Libel and Slanders laws in the province are hopelessly out of date.  The Internet has brought a whole new level of communication and the Libel and Slander Laws need to be updated to reflect this new reality.  Recent court decisions have found that a defamation on the Internet is huge because it could “reach the entire world”.  Of course this is non-sense and ignores the reality of the Internet and it’s interactive nature.  Censors love to shut down debate using any laws possible – and sadly the libel and slander laws have been used to threaten and harass many Canadians.

It’s time the Libel and Slander Act be updated – where strict proof of reputational damage is shown prior to a lawsuit proceeding.   Actual damages should be needed, not the current 'pixie dust' style formula which sides with the plaintiff that a mere claim of damages is implied just due to dropping of the writ.

Discussion on this can be found at: http://www.freedominion.com.pa/phpBB2/viewtopic.php?f=70&t=146716  And “Dr. Dawgs Blog” where you can find his side of events, can be found at: http://drdawgsblawg.ca/