Baglow v. Smith – a recent Ontario decision about defamation online – in this case, blogging (political) on a message board. The Court described it as rude, aggressive, sarcastic, hyperbolic, insulting, caustic and/or vulgar.
Basically, A sued B, claiming B had defamed him on a political blogosphere message board. A also sued the host of the message board, who created the online forum for the comments exchanged between both A and B. A and B had both posted on the message board, rather aggressively. B took it too far. The Court also held the message board host/moderator liable to A for defamation damages.
Take Aways:
1. A moderator or creator of an online message board may be held liable for defamation for posts made by a third party. Here, the host was fairly active on the message board (which likely impacted the Court’s decision). However, the case does not make it clear, in my view, if it would readily apply to popular social media sites (Facebook, etc.), where there are so many users.
2. The case applied to direct comments made by a user on a message board. It does not establish, in my view, that the same result would apply to, for example, a hyperlink posted, or an indirect statement, such as so-called ‘ comment boxes’ on Web sites or sharing someone else’s post on social media, for example. It might be argued it should apply, but the Court does not extend its finding that far, at least not expressly.
3. Blog anonymity may be an important factor – the Court indicated: [t]he evidence reveals in this case that almost all of the individuals who post or comment on Free Dominion do so anonymously. To adopt the position of the defendants would leave potential plaintiffs with little ability to correct reputational damage. This may mean that hosts/moderators might only be held liable in future if the identify of the blogger/poster is unknown, or could not be ascertained. If not, it is questionable if the host would be held liable.
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