The “Sting” and Context of Libel

Written on September 20, 2011.

In a recent defamation decision, Baglow v. Smith, the Ontario Superior Court of Justice emphasized the importance of the context in which alleged defamatory statements are made.

The plaintiff, Baglow, and the defendant, Smith, operated internet blog sites which served as venues for political commentary for guest bloggers. They were engaged in a heated debate online dealing with Omar Khadr’s trial and detention in Guantanamo Bay. In light of this debate, Smith posted a lengthy comment on his blog referring to Baglow as “one of Taliban’s more vocal supporters”. An action was commenced after Smith refused to take the comment down.

The court found that the statement was not defamatory and that the defence of fair comment applied. Justice Annis noted that the tone of the debate between Baglow and Smith was such that acrimonious comments were made by both sides. He stated that even derogatory and defamatory remarks are expected to be parried in a live debate so as to remove the “sting of libel” and attenuate any threats of diminution. He also stated that bringing an action based on a comment made in the midst of a debate would have a chilling effect on internet debates.

This decision creates an important precedence in defamation law by affirming that an allegedly defamatory statement made in a debate on a blog or internet forum may not be found to be defamatory if the plaintiff previously engaged in the debate but chose not to respond to the statement despite having the opportunity to do so.