February 23, 2015
Baglow v Smith 2015 ONSC 1175

The Court finds that the plaintiff established all three elements with respect to his claim for defamation against the moderators of a message board called “Free Dominion”. However, after analysing the four elements that must be met to meet the test for fair comment (1. the comment is on a matter of public interest, 2. the comment is based on fact, 3. the comment, though it can include inferences of fact is recognizable as comment, 4. any person could honestly express the opinion on the proved facts) Madam Justice Polowin found that the defendants met the test.

In the course of this trial the Court appointed Dr. Greg Elmer as an independent expert pursuant to Rule 52.03. The Court found him to be an expert qualified in the area of Internet social media, culture and communications, including communications of a political nature.

An earlier decision in this litigation, from the Ontario Court of Appeal, found there was no existing law which examined whether different legal considerations applied in determining whether a statement is or is not defamatory in the “blogosphere” than apply to the publication of an article in a traditional medial outlet, stating that a trial would permit “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”.