Free Dominion wins the Baglow case!



This is most excellent news!  And – most enjoyable reading…

Last month, I reported my observations and opinions (strictly personal ones) of the hearing for summary judgment in the ‘Baglow case’:  here are part 1 and part 2.

Quick recap:  John Baglow and ‘Peter O’Donnel’ got into a heated debate online which spanned several blogs and the Free Dominion discussion forum on the topic of Omar Khadr, his trial and whether or not supporting Omar Khadr constitutes ‘supporting the Taliban’.

John Baglow then tried to sue ‘Peter O’Donnel’ and Free Dominion for defamation:  ‘Peter O’Donnel’ for what he said and Free Dominion for being the forum in which he said it.  (‘Published it’ would be a more accurate term – but ‘said’ just rolls off the keyboard so much more easily!)

Today, the ruling in the case came in:  the case has been dismissed.

Here are a few quotes from the ruling which I found most interesting:

[70] Bringing an action on the comment in mid-debate runs contrary to the rules and has the
effect of chilling discussion. If allowed, it places the opposing party in a defensive mode, rather
than an offensive one, strategically putting that party at a disadvantage.

[71] This was all the more so where the blog is used to aggressively berate the other side,
score points employing colourful derogatory characterizations, e.g. the plaintiff calling the
defendant Comrie Fournier the “Free Dominatrix” or referring to the opposition as “yokels with
pitchforks”, or to undermine their logic and indeed their standing by superior debating skills.

* * *

[84] In any event, the plaintiff largely contradicts his view of the evidentiary basis that the
Court should use to judge this matter. He describes the foundation for his own contemptuous
views towards the defendants as follows:

With respect to paragraph 7, I do not deny that the Defendants and I are
ideological adversaries and opponents in the blogosphere. I do not know the
defendants personally, and so my derision, scorn and contempt for them. can only
be for their opinions and actions as evidenced by their postings.

[85] I am in agreement with the plaintiffs statement, which should have mutual application to
all parties engaged in this political debate. There is nothing in the blogging threads which would
suggest that there was any personal or inherent express malice on the part of the defendants
directed at the plaintiff, as opposed to the mutual contempt of the parties for each other’s
opinions and actions as evidenced by their postings.

[86] The defendants would be entitled to rely upon the defence of fair comment should their
statement be found to be defamatory.

The way I understand these words, the judge is saying that when one starts to loose in an online debate, running to the courts to sue the other side is not an appropriate course of action.  And, if it is OK for YOU to call somebody names, it is OK for THEM to call you bad names as well…

OK – I that was the sweetest bit in the ruling – in my personal opinion.

Here are some other bits that caught my eye:

  • The statement by ‘Peter O’Donnel’ were statement of opinion during an ongoing debate

[40] 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.

  • Just because somebody calls you a name does not mean people believe it

[54] The fact that the parties are engaged in ongoing debate over what it means to support the
Taliban is recognized in the plaintiffs attempt to explain the distinction between his situation and
that when the late Jack Layton, former leader of the NDP) was described as “Taliban Jack”.

Secondly, the handle “Taliban Jack” does not necessarily imply conscious
support, but rather suggests giving an unintentional and unplanned advantage to
the Taliban. I respectfully submit the words spoken by Mr. Smith cannot be given
such an interpretation and imply conscious support for a political group at war
with Canadian Forces. [Emphasis added]

[55] I frankly fail to see the distinction in not implying “conscious support” when applied to
“Taliban Jack” giving an advantage to the Taliban and to the statement that the plaintiff is a
vocal supporter of the Taliban.

[56] But more importantly, the plaintiff’s comment is understood as being part of the ongoing
debate between the two factions represented by the parties’ views. No reasonably informed
Canadian would conclude that Mr. Layton was defamed by being called Taliban Jack,
understanding that this was simply a catchy label attached to him by conservatives to showcase
what they consider the weakness of the liberal argument in this political debate.

[57] Reasonably informed readers of these blogs would understand labelling the plaintiff a
supporter of the Taliban as performing the same function and would not consider the comro.ent
capable of lessening the reputation of the plaintiff.

  • Here is a bit that refes specifically to blogging

[59] nternet blogging is a fonn 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 ‘an immediate or a relatively contemporaneous time frame.

[60] This distinguishes the context of blogging from other forms of publication of defamatory
statements. One exception couId 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 10 determine whether the
statement is defamatory in so far as whether it is complete.

[62] An example that does not in any manner reflect the Court’s views on these issues, but
wbich might serve to explain how derogatory, even defamatory remarks are expected to be
parried in a live debate so as to remove the “sting of the libel” and attenuate any threats of
diminution of reputation might be as follows:

Mr. Smith knows full well that I abhor what the Taliban stand for. His calling me
one of their supporters because I think they should be entitled to due process in
accordance with lntemationallaw would be like me calling him (some derogatory
descriptor, e.g. “a Nazi fascist”) because he wants to trample the rights that’
Canadians cherish, etc. [Example provided by the Court]

[63] Given that the plaintiff pleads his belief that “there is a reasonable likelihood of damage
to my repumtion if it became generally believed that I supported the enemies of the
Canadian Forces”, it seems that the tendency of the comment to lower his :reputation, particularly
when arising in the form of a comment in a debate, could have been quickly nipped in the bud by
a simple rejoinder in the fashjon described above. This would have had the additional benefit of
allowing him. to score some points of bis own.

There are other really interesting bits – read the full ruling for yourself!

2 Responses to “Free Dominion wins the Baglow case!”

  1. Mrs. Numpty Mews Says:

    Oooooh, John is so upset he’s mistakenly banned my IP.

    Xan says: LOL

  2. Don Sharpe Says:

    Great victory for Free Speech!
    ‘Yokels with Pitchforks’ indeed . …

    Xan says:

    The Czechs (or two specific Czechs – not the point) are credited with inventing the popular term ‘ROBOT’ from the Czech word for ‘serfdom’ (robota, while ‘robotnik’ and ‘robotnice’ refers to male and female serfs themselves). (Actually, the term was not ‘neutral’ but specifically masculine – they simultaneously introduced the word ‘robotka’ to refer to female robots….but that is not at all relevant to my point, just fun…)

    It is less often remembered that the Czechs had, several centuries earlier, invented another word: ‘DEFENESTRATION’.

    ‘Defenestration’ is what happens when a bunch of yokels with pitchforks gather under the windows of a building with a bunch of corrupt politicians in it….and some of the crowd pops upstairs to aid the corrupt individuals leave the buiding through the windows.

    ‘Defenestration’, though, has such a dignified sound to it… and, in Czech, it is an honoured tradition! Like – seen as a good thing.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: