Thursday, March 05, 2015

History of blogging

A blogger opposed Canadian participation in the Afghanistan conflict and argued that Omar Khadr should be repatriated to Canada and treated as a child soldier. He (call him Blogger One) was thereupon described on an internet forum as a Taliban supporter. Blogger One sued for defamation. The defendants won a summary action for dismissal-- the judge concluded there was no cause of action as the fair comment defence would obviously prevail.

On appeal, the Ontario Court of Appeal decided that there was a need for more jurisprudence on the question of internet defamation and it ordered a new trial with a full investigation of the issue. Full trial took place in Ottawa.

The defence has won again.  Pending further appeal (one suspects both the OCA and the Supreme Court of Canada will look with interest on this one), Canadian law holds that it is fair comment to say that Blogger One, who opposed Canadian military action in Afghanistan and believed in due process for Omar Khadr... supports the Taliban regime.

The court found that it is established law that "fair comment" does not have to be "fair minded."
In this context, “fair” does not mean objectively reasonable. The defence protects obstinate, or foolish, or offensive statements of opinion, or inference, or judgment, provided certain conditions are satisfied.
I think (I think) that this is a good decision -- and a pretty interesting read, too. The statement made about Blogger One strikes me as a foolish and offensive inference, but on the whole I think that it is a good thing that foolish and offensive inferences about people's positions on matters of public policy are not actionable -- or at least that there is a very high threshold that claims for defamation must reach.

Flame wars have not been a big part of this blog, shall we say.  I used to run a feature here called "Drivel Watch,"  highlighting particularly foolish things said about Canadian history.  I gave up the 'Drivel' label, not because I made a calculation about the likelihood of being sued, but because I began to find the label unnecessarily offensive to well meaning people who didn't deserve to be called names. I still think that's about right, but it looks like I could have continued without fear of losing a defamation action.  Good.

(I do think the defendants' opinion of Blogger One is drivel.  At the moment there is no law against drivel.)


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