TORONTO - A right-wing political commentator should face trial for referring to a blogger as a Taliban supporter during a heated online exchange, the Ontario Court of Appeal ruled Thursday.
The unanimous decision set aside a lower court ruling that dismissed the case against Roger Smith, an active participant in the blogosphere and regular contributor to the conservative website FreeDominion.ca.
Smith was accused of defamation by John Baglow, who operates the left-leaning Dawg's Blawg and brought his case before the Superior Court of Justice last year.
The lower court ruled that the remarks _ made during a debate about Canadian Guantanamo Bay detainee Omar Khadr were not defamatory, since they represented a statement of opinion rather than fact. Justice Peter Annis also ruled the remarks did not constitute libel, since they were exchanged in the charged online environment where hostile barbs are considered routine.
However, the appeal court decision said such a question could not be decided without the closer examination offered by a trial, since the world of online commentary is relatively uncharted by the legal community.
"The responses may have far-reaching implications. They are best crafted on the basis of a full record after a trial – at least until the law evolves and crystallizes to a certain point," the three-judge panel said in its decision. "A trial will permit these important conclusions to be formulated on the basis of a record informed by the examination and cross-examination of witnesses and quite possibly with the assistance of expert evidence."
The appeal court decision said the contentious exchange took place in August 2010 when Baglow published a blog post speaking out against the current Conservative government. The post gave rise to exchanges with other bloggers, during which the issue of Khadr's detention at Guantanamo Bay was raised.
Baglow spoke up in favour of Khadr's repatriation to Canada and condemned the trial Khadr was then undergoing in the U.S. as a "judicial lynching," the ruling said.
A blog entry on the subject elicited a pointed response from Smith, who said his support of Khadr's legal rights amounted to treason.
"In the moral sphere, you seek complicity with the recent murders of American aid workers under the spurious (if outrageous) charge of spreading Christianity, when you sign up to support Omar Khadr," court documents quote Smith as writing.
"I think such public declarations of support of Al Qaeda and the Taliban amount to treason, given that we are engaged in a war against them."
Smith then took to FreeDominion to speak out against Baglow, at which time he referred to the blogger as "one of the Taliban’s more vocal supporters."
That remark was enough to spur Baglow to take legal action, the ruling said.
"He argues that it does not follow, simply because he opposes the war in Afghanistan and supports the rights of Omar Khadr to a fair trial, that he is a supporter of the Taliban," the decision said.
"In fact, he has criticized the Taliban as a dangerous, theocratic and tyrannical regime in many comments and blog postings."
Court documents said Baglow wrote to the operators of the FreeDominion site requesting that libellous material be removed.
Mark and Connie Fournier, who were also named in his lawsuit, refused the request.
Mark Fournier condemned the appeal court's decision as an attack on Canadian freedom of speech.
"The powers that be would love nothing more than a nation of Canadians too afraid to voice unapproved political opinions on the internet. We can't leave the law as it now stands or we all fall," Fournier wrote on FreeDominion.
"We can't allow ourselves to be silenced by those who would sell our freedom of all Canadians for personal gain."
Neither Baglow nor his attorney could immediately be reached for comment.
The appeal court decision was lauded in legal circles as a necessary step to resolving a thorny issue.
Iain MacKinnon, defamation lawyer with Toronto lawfirm ChitizPathak, said the original superior court ruling tried to resolve a pressing and unprecedented legal question using very flimsy evidence.
Annis was relying on nothing more than affidavits from Baglow and Smith, he said, adding the court of appeal has recognized the need to give the issue more airtime.
"There's no doubt that is it a novel, unique case, both legally and factually, because there isn't a lot of case law anywhere in Canada," MacKinnon said. "To have a decision out there that summarily dismisses the plaintiff's claim . . on the basis of a very thin evidentiary record is not good for the law in general."
The key question, MacKinnon said, is whether the defamation rules that apply to mainstream publications are also relevant in the more complex online world.
The original ruling suggested the internet was subject to a different set of rules than those that govern more traditional media, he said. Annis' ruling suggested that Baglow's reputation could not be harmed by Smith's remarks because the comments were made in a forum where aggressive exchanges were par for the course.
"The judge really did throw a wrench in traditional libel principles as they apply to online publication," MacKinnon said. "That wrench has been removed."
If the matter comes to trial, MacKinnon expects much time would be spent exploring the complex dynamics at play on blogs and other internet-based communities.
Until that matter is resolved, MacKinnon said online commentators would be wise to err on the side of caution.
"Lawyers advising clients would say that the same legal principles that apply to traditional media . . still apply to the online world, and until a court rules otherwise, that's the repercussions."