I’ve reread the Baglow v Smith et al decision. Dawg and friends seem to want to think Polowin, J. simply applied existing defamation law. I think she went further than that and I commented at Dawg’s blog as follows, (minor edits for intelligibility):
. I would read paragraphs 230-234 again Dawg.
My sense is that this is where the flat out statement of “fact” is transmuted by context into “fair comment”. It is an important point as it means that where a blog or board is primarily a place in which opinions are vented there arises the presumption that something posted to that board is more than likely to be opinion and therefore comment as well.
In a sense it is a legal recognition that the editorial pages are held to a different standard than the news pages and that material clearly labelled opinion is less likely to fail to be saved by a defence of “fair comment”.
This is why I expect this decision is important and probably not just online. The judge’s consideration and extension of WIC has, happily in my view, clarified where fair comment ends and real defamation begins. And her reasons make nearly explicit a view that editorial or opinion speech is significantly protected by the context of its utterance.
(I am going to gallop over to my little blog and put up the words “strictly editorial” … I will leave it to my lefty friends to read in “entirely fact free”.)
Unfortunately, this is implicit in the decision. For various reasons judges who extend the law often do it by implication rather than coming right out and saying it. However, the next case will push the implication further.
Context matters. And context is both the speech itself and the forum in which it is uttered. A political commentary board is all about opinion. Polowin has, implicitly, created a legal presumption that speech inside such a board is to be regarded as comment rather than fact. Even when the bare meaning of the words looks like an assertion of fact.
I think this is significant as it creates a new means of analyzing speech for purposes of defamation law. As a result of Baglow a new question arises in the fair comment defence, where were the words spoken and would a reasonable person take that forum as an editorial/comment based environment or would they assume that the words spoken there should be regarded as fact?
It is a hook upon which a good deal of pretty hard hitting commentary can be hung. When context matters the mere words are not enough to survive the fair comment tests. And, interestingly, the intention of the author may not matter much. If you post to a site which is devoted to political commentary, even if you assert as fact something which is found to be defamatory on its face, your choice of forum may well protect your words.
Cautiously, Polowin, J. may have made a key distinction. She may, by implication, have brought the “brass rail rule” to Internet political commentary in Canada. She may have said that if you are standing in a metaphorical bar, you foot firmly on the brass rail, if you call someone a Damned liar, defamatory as those words may be, you are shielded by the environment in which you’ve said the words.
Baglow seems to stand for the proposition that what you say matters and where you say it matters too.