Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Expands Expression
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Ontario’s Superior Court applied Canada’s fair comment test to the allegedly defamatory comments made by a blogger on a politically conservative blog about a blogger on a politically liberal blog. The Court found that although the statements met Canada’s three-prong test for defamation, given the entire context of the blog post, a reasonable person would discern that the comments were an expression of opinion rather than an assertion of fact, and therefore were protected under Canada’s four-prong fair comment.
Plaintiff John Baglow owns and operates a blog called Dawg’s Blawg, on which he posts left-wing opinions on various political and public interest issues using the pseudonym “Dr. Dawg.”
The first defendant, Roger Smith, who blogs under the pseudonym “Peter O’Donnell,” is a right-wing commentator who comments frequently on Free Dominion and other blogs, including Baglow’s. Free Dominion is moderated and operated by the second and third defendants, Mark and Connie Fournier.
Baglow claimed that Smith defamed him with comments on Free Dominion, and that Mark and Connie Fournier defamed him by publishing those statements. The court reviewed a variety of heated statements made by both parties, but the essential statement upon which Baglow’s claim hinged was one in which Smith referred to Baglow as “one of the Taliban’s more vocal supporters.”
Smith and the Fourniers brought a summary judgment motion on the basis that the statements were not defamatory or, alternatively, that the defense of fair comment applied. The Superior Court of Ontario granted summary judgment to the defendants and the plaintiff appealed to the Court of Appeal for Ontario, which remanded the case on the basis that the application of the law of defamation to a robust and free-wheeling exchange of political views in the internet blogging world was something which was best resolved after a full trial.
Polowin, J., delivered the opinion of the Court. The Ontario Superior Court of Justice relied on the 2008 Canadian Supreme Court decision WIC Radio Ltd. v. Simpson to apply a reformulated objectivity test determining whether a statement published in an online political forum could be considered “defamatory” under Canadian law.
Traditionally, to succeed in a defamation claim, a plaintiff must satisfy three requirements: 1. show that the defendant’s statements were published to a third person; 2. show that the statements referred to the plaintiff; and 3. show that the statements were legally defamatory.
However, given that different media publications have their own unique audiences, Canadian courts have recently developed an audience-specific test, or the “objectively reasonable belief” test. In WIC Radio Ltd. v. Simpson, Canada’s Supreme Court found that simply expressing an opinion does not mean that it will be believed, and therefore it is not necessarily defamatory. The case presumed that the public evaluates comments in accordance with their own knowledge and opinions regarding the circumstances of the message. That is, the Court asked whether a reader of this specific publication would take the words so seriously as to lower their estimation of the subject about which they were spoken.
As part of this evolution, Canadian courts have developed a four-prong defense to protect speech which, although it may meet the traditional three-prong test for defamation, is nevertheless protected as a “fair comment” rather than an assertion of fact. A fair comment must: 1. be on a matter of public interest; 2. be based on fact; 3. be recognizable as a comment, and not a statement of fact; and 4. be a belief that a reasonable person could honestly express based on the facts.
In this case, the Court found that, although Smith’s comment was defamatory, it met all four factors of the fair comment defense. In the larger context of the debate on the blog—considering the blog’s audience and the nature of political debate on such blogs—the Court concluded that the comment was recognizable as comment (rather than as a statement of fact). Furthermore, Baglow was unable to show actual malice, which would defeat the fair comment defense.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case protects the expression of Canada’s political bloggers, even “where debate can be caustic, strident, vulgar and insulting,” because statements made on such blogs are “fair comment” (given the broader context of the blog) rather than factual assertions.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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