DEFAMATION ADVOCACY

a more generalist approach that sees the in- Annis held that the impugned statement ascribed to the harm.
ternet’s speed and reach as the defining could not be seen as defamatory in the con- But in the years since Baglow, courts have

Bringing order from chaos: factor in online libel cases.

In search of the mythical “reasonable reader”

Some thoughts on recent judicial
approaches to online libel cases
Mark Donald
This article updates and reworks a piece published by the author in 2012 for the Canadian Journalists for Free Expression:
https://www.cjfe.org/baglow_v_smith_and_online_defamation_in_the_blogosphere
the internet. Sure, it could educate and inspire. But, with pluck and
inventiveness, it could also be used to eviscerate the reputations of
others. On a massive scale. At great distance. Anonymously, no less.
So what the heck happened? When did we go from proud den-
izens of a global “marketplace of ideas” to a band of trolling sav-
ages? And for the purpose of the media/libel litigators among us,
how did our sad devolution influence the way online defamation
cases are treated by the courts?
Defamation: The basics
First, a brief primer on defamation and how it all works. To suc-
ceed in a defamation claim, a plaintiff must satisfy three steps:
(1) show that the defendant’s statements were published to a
third person; (2) show that the statements refer to the plaintiff;
and (3) show that they are legally “defamatory.” To prove this
third element, the plaintiff must show that the statement would
damage the plaintiff’s reputation in the eyes of the so-called
“reasonable” or “right-thinking” person.
But let’s be clear about this intriguing third step: A “defamatory”
statement requires something more than just imputing negative
qualities to a plaintiff. Rather, it has to actually lower the plaintiff’s
reputation in the community, and this is where context comes in.1
Defamation is a uniquely sociological tort.2 It asks us to balance
the value of an individual’s reputation against society’s interest in
promoting free expression. Once we recognize this shifting cultural
battle inherent in libel law, we necessarily recognize that changing
societal mores will change the tort itself.
In recent decades, Canadian courts have queried and re-queried
whether internet defamation differs from its forebears in reputa-
tional ruination: the handbill, the newspaper, the telegraph,3 the
The Internet is the first thing that humanity has built that humanity doesn’t radio and the television. And judicial conclusions about cyber-libel
understand, the largest experiment in anarchy that we have ever had.” have swayed back and forth, depending on how the online world
~ Eric Schmidt, former Google CEO, 2010 itself is understood.
At the core of these questions is our con-
cept of the “community,” and how defam-
atory speech affects that polity. Starting
in the mid-1990s, increasingly irreverent
voices in mass media required the judiciary
to consider how provocative speech was
understood by the “reasonable reader” in
defamation actions. Starting with WIC
Radio Ltd. v. Simpson, a case involving a
radio “shock jock” who ascribed pro-Nazi
sentiments to the plaintiff, Justice LeBel
opined that “members of the public must
be presumed to evaluate comments in ac-
cordance with their own knowledge and
opinions about the speaker and the subject
of the comments.”4
And therein lies the rub: What “public”
are we talking about? Different media out-
lets and publication forums will have their
own readerships, with their own sensibil-
ities and understandings for a particular
publication. Courts have always been alive
to this issue in the courtroom,5 but as online
publications, and particularly social media
platforms, have become more targeted and
sectarian, discerning the reasonable reader
has never been more difficult.
The first significant attempt at under-
standing the reasonable reader in the on-
line sphere was made in Baglow v. Smith – a
case spanning the mid-2010s – which saw
two ideologically opposed online bloggers
square off. In one corner, the plaintiff: a
well-known “progressive” commentator
who had repeatedly claimed that Canadian
Omar Khadr’s Guantanamo Bay detention
was contrary to international law. In the
other corner, the defendant: a conservative
blogger who responded to the plaintiff’s
position in August 2010 on his own suc-
cessful political blog, stating that the plain-
tiff was “one of the Taliban’s more vocal
supporters.” While the plaintiff accepted
in his eventual submissions to the court
that political blogs can at times be “caustic,
strident or even vulgar and insulting,” he
text of a political debate on an internet blog
“where insults are regularly treated as part
of the debate” and where “no reasonably
informed Canadian” would conclude that
the application of such a label was any-
thing more than a strike by the defendant
at the purported weakness of the plaintiff’s
position.” 6 Therefore, the court conclud-
ed that the plaintiff’s reputation could not
have been damaged.7
Justice Annis elaborated upon the impor-
tance of context in determining whether
or not a blog publication is defamatory. In
addition to the impugned statement not
being defamatory by virtue of the rough-
and-tumble nature of internet debates, he
added that since the statement was part of
an ongoing debate, any reasonable viewer
would “anticipate a rejoinder, which would
eliminate the possible consequence of a
statement lowering the reputation of the
plaintiff in their eyes.”8
The plaintiff successfully appealed the
summary judgment decision, and the case
eventually made its way to a full trial in
2015. In the trial decision, Justice Polowin
found that the impugned statement was
defamatory. After hearing expert evidence
on the internet, social media, culture and
political speech, Her Honour concluded
that, while online political discourse was
usually partisan and qualitatively different
from more “traditional” media, it was open
to expert debate over just how personal at-
tacks were actually perceived. In the end,
Her Honour appeared to be influenced gen-
erally by the fact that the question of wheth-
er a publication would “lower the plain-
tiff’s reputation” had been a relatively low
bar historically, but more specifically, by the
fact that the defendant was a political blog-
ger with enough credibility, such that the
non-partisans likely reading his blog could
reasonably take his post to be defamatory
of the plaintiff.9
The medium is the message: New judicial
emphasis on the internet’s speed and scope
The Baglow trial decision suggested a place
appeared to adopt a much more rough-and-
ready approach to the question of commu-
nity perception. In the author’s opinion, the
growth of online libel cases, and particular-
ly those involving sustained campaigns of
social media libel, have led judges to take a
more ubiquitous view of online defamation
and the harm that it can cause. And this
has caused a notable uptick in the damages
awarded in certain cases.
In the British Columbia decision Prichard
v. Van Nes,10 for example, the defendant was
found liable for making a Facebook post
that was found to mean that the defendant
was a pedophile (as well as being liable for
the comments that followed it). Although
the impugned posts were online for only
27½ hours, the court still concluded that
$50,000 in general damages and $15,000
in punitives was appropriate – significant
sums when compared with other internet
libel cases to that point.
This year, in Fort McKay Métis Community
Association v. Morin,11 the Court of Queen’s
Bench of Alberta refused to set aside a de-
fault judgment against a Facebook user
who had repeatedly published allegations
that, between them, the plaintiffs had en-
gaged in election fraud, sexual abuse and
election and other misconduct.
Each ruling emphasizes the proposition
that the speed and global reach of online
defamation means that it is to be viewed
through the prism of potential for harm, as
opposed to a technical analysis of the par-
ticular context of each post. The very first
paragraph of the court’s reasons in Fort
McKay reads:
Contrary to the belief of many, the Rule
of Law applies to the internet. It is not
some kind of untamed frontier. When a
person posts to the internet without re-
strictions, that person is posting to the
entire world with instantaneous effect
… There will be circumstances where
adverse legal consequences attach to ir-
responsible social media posts. That is
the hard lesson imparted today to Ms.
Morin, the Defendant in this case.12

L
et’s all cast our minds back to around the dawn of the 21st
century and the birth of the internet: The “information su-
perhighway” (which at the time was seen as a perfectly
trendy way to describe the medium) was in its infancy, possessed
of all the hope and optimism of youth. It was the greatest knowl-
edge disseminator since the printing press.
But things change, and they fall apart. We cannot be sure when,
but at some point, somebody stumbled upon a deeper truth about
36 | WINTER 2019 | THE ADVOCATES’ JOURNAL
The clearest expression of this debate is found in what the author
sees as two interrelated questions in online defamation cases: first,
whether something is actually “defamatory” in the online world;
and second, if a plaintiff succeeds in an online defamation case,
what should the damages be? At their core, both questions require
litigants, counsel and judges to think about how internet speech is
perceived by the people receiving it. In the past few years, the au-
thor has perceived a shift in judicial thinking away from in-depth
parsing of the content and readership of online speech, and toward
nonetheless objected to this comment as de-
famatory and lawyered-up.
The defendant responded to the claim
with a summary judgment motion alleg-
ing, among other things, that his statement
was clearly not defamatory of the plaintiff.
The court agreed with the defendant on
this primary point and granted judgment.
In the summary judgment decision, Justice
for expert and/or contextualized evidence
as to how alleged online defamation is
perceived. What’s more, one would have
thought that this same imperative would
inform the court’s perception of damages.
After all, if defamation law is about what
the community thinks of any particular de-
famatory statement online, then it is also
about the amount of money that should be
THE ADVOCATES’ JOURNAL
Similarly, in apportioning damages in Van
Nes, the court took a broad-stroke approach
to internet libel, holding:
In my view the potential in the use of
internet-based social media platforms
for reputations to be ruined in an in-
stant, through publication of defama-
tory statements to a virtually limitless
audience, ought to lead to the common
| WINTER 2019 | 37

law responding, incrementally, in the di-
rection of extending protection against
harm in appropriate cases. This is such
a case.13
To be clear, this judicial nod toward the
internet’s potential for mass reputation-
al destruction has existed in the case law
for some time. In 2004, while the internet
was still relatively nascent, the Court of
Appeal for Ontario had opined in Barrick
Gold v. Lopehandia:
Internet defamation is distinguished
from its less pervasive cousins, in terms
of its potential to damage the reputa-
to the important context of the readership?
The answer, perhaps, has something to
do with changing attitudes in the judi-
ciary about how online defamation is to be
tackled. Since birth, the internet has gone
through several stages: originally viewed
as an unprecedented educational tool, it
has now morphed into a battleground to
test the value and outer limits of expression
itself. Increasingly confronted with viru-
lent online trolling, the courts appear to be
adopting an enough-is-enough approach –
exasperated at the lack of restraint, decorum
or basic ethical standards shown by some
REFLECTIONS OF AN ADVOCATE
recklessness or mala fides, in conjunction
with a healthy dose of recent case law in the
mould of Van Nes, Fort McKay, Rabinowitz, et
al., which emphasize the internet as a sort
of leviathan of online muckraking, may be
enough to get you where you need to go. On
Lessons from my first 10,000
the flip side defendants should realize that,
for the time being anyway, the era in which
courts will be willing to ascribe a laissez
hours as a litigator
faire ethos to the world of online publication
may be over. In the final analysis, it would
Gord McGuire
appear to the author that in online defama-
tion cases, judges are less likely to ascribe
any special characteristics to the “reasonable

tion of individuals and corporations,
by the features described above, espe-
cially its interactive nature, its poten-
tial for being taken at face value, and
its absolute and immediate worldwide
ubiquity and accessibility. The mode
and extent of publication is therefore
a particularly significant consideration
in assessing damages in Internet defa-
mation cases.14
However, in the aftermath of Barrick Gold,
online defamation damages stayed relative-
ly small, and in the author’s opinion the
Barrick Gold dictum about the pervasive
dangers of online defamation functioned
more as a touchstone to scold reckless on-
line publishers, as opposed to punishing
them in their pocketbooks.
But it would appear that the Barrick Gold
approach is back in vogue, and this time
around it’s being used to some pretty dev-
astating effect. Van Nes and Fort McKay are
both influenced by the same reasoning. 15
Most recently, Barrick Gold came roaring
back in the Court of Appeal for Ontario’s
decision in Rutman v. Rabinowitz. In that
case, defendants were responsible for, in the
court’s words, “a case of serious, sustained,
and baseless internet defamation” wherein
the plaintiff was accused of extensive fraud-
ulent conduct.16 At trial, the defendants were
found liable for an astounding sum in def-
amation terms between them: $200,000 in
general damages, $200,000 in aggravated
damages and $300,000 in punitive damages
– a final bill of $700,000.
On appeal, the defendants challenged
the trial court’s findings on the quantum
of damages. They failed. Most notably, the
Court of Appeal upheld the damages award
in spite of the fact that the plaintiff’s own
witnesses indicated that they gave little cre-
dence to the defamatory posts.17
So, what gives? How is it that damages
for a tort as purportedly contextual as defa-
mation can be determined without reference
38 | WINTER 2019 | THE ADVOCATES’ JOURNAL
I
self-styled “activists” and “journalists.” reader” online. Rather, in cases involving
The practical result for plaintiff-side libel sustained or particularly vicious campaigns joined a litigation boutique early in my career for the same
litigators is that, when fighting a “non-tra- of defamation, courts will simply let the reason many young advocates do: I was hell-bent on logging
ditional” media adversary, attempting a words speak for themselves and emphasize as much “time on my feet” as possible (and not the kind I was
deep dive into the context of a particular the internet’s speed and global reach as the getting at my standing desk). Having recently devoured Malcolm
publication may be expensive – and ulti- defining consideration. In this way, they Gladwell’s Outliers, my thinking back then was distinctly Gladwel-
mately unnecessary to either prove your appear to be taking a page from the gospel lian: I wanted to be in court as much as humanly possible under the
case or obtain a significant damages award. of famed Canadian media analyst Marshall rationale that to get good at something, one has to do it over, and
Instead, showing the defendant’s simple McLuhan: the medium is the message. over, and over for an ungodly amount of time.
Having crossed Gladwell’s fabled 10,000-hour milestone not so
long ago, I thought it was about time to take stock of my prog-
ress. While only a small fraction of those 10,000 hours was spent
in court, the hours have brought with them many unexpected les-
sons. Here are my top five.
1. The law is the cart. The facts are the horse.
Notes Coming out of law school, I used to think that judges decided cas-
1. Baglow v Smith, 2015 ONSC 1175 at para 163, citing WIC v Simpson, 2008 SSC 40 at para es the same way we had answered questions on our hypothetical
69 [WIC]. exams. I pictured them setting out in their minds the five-part test
2. Bob Tarantino, “Chasing Reputation” at 615, citing Jerome Skolnick, The Sociological Tort of and then methodically applying the facts to each step, carefully
Defamation, 74 California Law Review 743 at 743. placing the evidence on both sides of a mental scale like some kind
3. One assumes, as throughout the author’s almost seven years of practice he has yet to find a of white-lab-coat-wearing Lady Justice. This idea led me to believe
single historical case about libel being transmitted via the lost art of Morse code. that in any legal argument, the case law was driving the bus, dictat-
4. WIC, supra note 1 at para 73. ing the result on the particular facts before the court.
5. Mantini v Smith Lyons LLP, 171 OAC 375, 2003 CarswellOnt 1731 at para 14, footnote 5. See I now think I had it exactly backwards. It seems that more often
also Martinek v Dojc, 2011 ONSC 3795, 2011 CarswellOnt 5616 at para 26; Bonnick v Morris than not, judges in civil proceedings are moved less by legal prin-
& Ors (Jamaica), [2002] UKPC 31, 3 WLR 820 at para 9. ciples than by their own innate sense of fairness. They see their
6. Baglow v Smith (summary judgment motion), 2011 ONSC 5131 at paras 36, 56. job description very differently than did Oliver Wendell Holmes,
7. Ibid at para 57. Jr., who is said to have admonished his clerk, “Our job is not to do
8. Ibid at para 65. justice; it is to apply the law.” In my limited experience at least,
9. Ibid at paras 206–15. judges seem to be motivated by the opposite: a desire to achieve
10. 2016 BCSC 686 [Van Nes]. what they see as justice rather than adhere dispassionately to the robes were noticeably more worn than mine) emphasized the ev-
11. 2019 ABQB 185 [Fort McKay]. five-part test. idence, and in particular the photographic evidence, of the state in
12. Ibid at para 1. To win the argument, then, the advocate has to persuade the which my client had left the “finished” construction project. The
13. Van Nes, supra note 10 at para 119. judge why it is right and just and fair in this particular case to side motion didn’t end well for me, or my client.
14. 187 OAC 238 at para 34. with one’s client, and not the other side’s. Case law certainly has its Images have a way of registering in people’s brains at a deeper
15. See Van Nes, supra note 10 at para 116 and Fort McKay, supra note 11 at para 1. place, but it is often best utilized after a judge has been given a rea- level than mere words or numbers. When restaurateurs put colour
16. Rutman v Rabinowitz, 2018 ONCA 80 at para 1. son to lean toward one’s position, as a means of showing the judge photographs beside menu items, for example, sales increase 30 per-
17. Rutman v Rabinowitz, 2016 ONSC 5864 at paras 224–227, 236. not only should you find for me, but you can find for me because the cent. The same is true in court: A lawyer’s submissions are mere
authorities say so. sounds in the air, but a picture takes the judge to the scene of the
tort and leaves an impression that lasts. Perhaps for the same rea-
2. A picture is worth a thousand authorities. son, actually taking a judge to a case or a transcript – something
I once argued a motion involving a dispute between a homebuilder His or Her Honour can see and touch – often seems to have more
and homeowner. Being relatively new to the persuasion business, I impact than merely telling the judge about the evidence or law.
emphasized in my submissions the legal test and the case law, both If actual images are in short supply, mental images can suffice.
of which were decidedly on my side. Opposing counsel (whose For example, in resisting the defendant’s attempt to adjourn your
THE ADVOCATES’ JOURNAL | WINTER 2019 | 39