Steven Price

My book

Media Minefield

Guide to NZ Media Law

Official Information Act

Official Information Act

Bill of Rights Act

Media law resources

Feeds (RSS)

« | Main | »

Online defamation: is it any different?

By Steven | January 30, 2012

This is my column in NZ Lawyer magazine for 27 January 2012.

Are the laws of defamation different online?I’m picking this question is going to garner increasing debate in the next few years. The answer, of course, is straightforward. Ask any blogger (they are seldom shy of venturing legal opinions) and they’ll tell you that there are no laws of defamation online. It’s a wild west, a free-for-all. Cyberspace exists beyond the jurisdiction of the courts.

Alas, the courts seem to pay little respect to this line of jurisprudence. Early on, it was apparent that anyone who believed the online world somehow gazumps defamation laws was in for a nasty surprise. “I know no forum in which an individual has the freedom to say what he likes and in any manner he wishes about another individual citizen with immunity from suit for all consequences,” said Judge Ross in 2001. “Merely because the publication is being made to cyberspace does not alter this.” (O’Brien v Brown [2001] DCR 1065).

That’s your standard legal analysis. It’s still the best starting point. But a few recent cases suggest that things may be starting to shift a bit. Some judges seem receptive to an argument that readers of some online postings won’t take them seriously. This has been described as the “ALL-CAPS” defence to defamation.For example, Eady J commented that bulletin board postings were “often uninhibited, casual and ill-thought-out; those who participate know this and expect a certain amount of repartee or ‘give and take.’”  He said that some inflammatory comments might be taken as mere vulgar abuse and therefore not taken by reasonable readers as intended to be accurate (Smith v ADVFN Plc [2008] EWHC 1797 QB).

More recently, a superior court judge in Ontario issued a remarkable decision granting summary judgment against a plaintiff for an attack against him made on a website (Baglow v Smith 2011 ONSC 5131). He was a prominent political blogger called, for reasons best known to himself, “Dr Dawg”, though it was well known that his real name was John Baglow. Baglow argued that Omar Khadr, a 15-year-old Canadian national captured by US forces in Afghanistan and taken to Guantanamo Bay, should be repatriated. A right-wing blogger accused Baglow of being “one of the Taliban’s more vocal supporters”. In fact, Baglow had frequently criticised the Taliban as dangerous, theocratic and tyrannical.

The judge found these words were protected by the defence of fair comment (here, honest opinion). Maybe that’s so. But he also found that they weren’t defamatory in the first place. How did he figure that? His most convincing justification was that readers would think that “one of the Taliban’s more vocal supporters” was not literally true but merely shorthand for “he’s effectively helping the regime.” Still, that’s not enormously convincing. For one thing, it’s not clear why readers would reach that conclusion. For another, it still seems a bit defamatory. Most importantly, the judge’s job was to weed out meanings that the words were incapable of bearing. Can it really be suggested that those words weren’t capable of meaning…  just what they said? The judge seems to have usurped the jury’s function, which was to determine the actual meaning.

But the judge then lists other, even more interesting, reasons for his conclusion:

Internet blogging is a form of public conversation. By the back and forth character it provides an opportunity for each party to respond to disparaging comments before the same audience in an immediate or a relatively contemporaneous time frame. This distinguishes the context of blogging from other forms of publication of defamatory statements…

He said in many online environments, readers expect cut and thrust. They expect a defamatory statement to be parried. He said a “simple rejoinder” (he even went to the trouble of drafting one) could have “nipped in the bud” the risk to the plaintiff’s reputation.

In essence, I am suggesting that the Court, in construing alleged defamatory words in an ongoing debate, should determine whether the context of the comment from the perspective of the reasonable reader or listener is one that anticipates a rejoinder, which would eliminate the possible consequence of a statement lowering the reputation of the plaintiff in their eyes.

This seems to involve heroic assumptions. Why would readers necessarily discount an unrebutted statement? Why would a rebuttal necessarily undo all the harm? Still, putting aside its lack of coherence (it’s under appeal) the decision can still be seen as part of a trend: it treats online speech as distinctive; it suggests the best remedy for harmful speech is further debate; it incentivises rights of reply; it may reflect a sense that that the ICBM of defamation law is an inappropriate response to an online foodfight.

A US judge last year also refused to recognise online attacks as harmful. A bankruptcy specialist working at Obsidian Finance sued the author of “” (Obsidian Finance Group v Cox USDC, Oregon, 23 August 2011) for calling him a fraudster, thief, and liar who had engaged in corruption, pay-offs and cover-ups. The judge said that blogs “are a subspecies of online speech which inherently suggest that statements made there are not likely provable assertions of fact”.

Bear in mind that in the US, the First Amendment gives statements categorised as opinions a bulletproof jacket against defamation suits. And it’s certainly true that the blogger used lots of capitals, bold type and hyperbolic language, which many would have seen as clues to her credibility.

Still, the implicit assumption that inflammatory blogs are so overheated as to be self-evidently harmless seems questionable. I’m inclined to think a proportion of us (not me or you, of course) are credulous enough to lap this sort of attack up. Others may at least wonder whether there’s any fire under all that smoke. Are the victims of such attacks to be left without remedy?

Which takes us again back to the Law Commission’s search for the Holy Grail: a speedy, effective, and cheap means of determining online disputes like this. Should we set up a Communications Tribunal or Commissioner? The Commission is still taking submissions…

Topics: General | 2 Comments »

2 Responses to “Online defamation: is it any different?”

  1. Graeme Edgeler Says:
    February 3rd, 2012 at 11:36 am

    I am surprised Judge Ross has never heard of Parliament.

  2. Social Media Law » Online Defamation an Evolving Issue Says:
    February 24th, 2012 at 6:49 am

    […] rules for online defamation may be a matter for individual courts to determine according to “Online Defamation: Is it Any Different?” by Steven Price. Like many issues in cyberspace, defamation is still being defined and refined in […]


You must be logged in to post a comment.