Blogger or journalist? In Canada, defamation law applies either way
by Vanessa Hrvatin
Who is a journalist, anyway? In the age of the internet, the definition is becoming less clear.
In the past, journalists were considered gatekeepers of information, but today, anyone can share facts and stories online through different platforms, including blogging sites. Many freelance journalists spend time blogging about topics without necessarily worrying about the ethical and legal considerations associated with journalism. Others—who don’t consider themselves journalists at all—have made careers by blogging on a specialized topic.
While blogs and message boards often provide a great platform to disseminate information and engage in productive conversations, they also represent a grey area when it comes to defamation laws. People tend to speak more freely on the internet and for many independent journalists and bloggers, the legal implications of defaming someone in the blogosphere are unclear.
Defamation law in the blogosphere
The laws around defamation in the blogosphere became clearer in 2009, when the Grant versus TorStar Corp defamation lawsuit established the defense of responsible communication on matters of public interest. This precedent established that as long as journalists did their due diligence in confirming potentially defamatory facts, they could not be held liable for defamation.
This defence was previously called responsible journalism, but during this case it was decided that bloggers could use the defence as well—officially removing any legal distinction between blogger and journalist. This essentially means if a blogger defames someone online and is taken to court, they will have to prove they did their due diligence in confirming facts before they shared the information on their blog, just as a journalist would have to. However not every case is clear cut, and the law is still adapting to lawsuits in the blogosphere.
“There are interesting and sometimes difficult questions that come up in relation to freedom of expression in a technological era that the laws and courts have not yet caught up to,” said Noa Mendelsohn Aviv, acting executive director of Canadian Civil Liberties Association.
“Defamation law creates a limit on expression and these limits have to be determined on a contextual basis. People who blog because they have a child with a particular disability and they want to share their experiences is a very different context than somebody who has thousands of people reading their blog.”
Who owns the content?
Some online sites allow anyone to post or comment, and the owner of the site doesn’t necessarily share the same opinions, raising the question of who should be held responsible for defamatory comments.
In 2015, John Baglow sued fellow blogger Roger Smith for defamation when Smith wrote that he was “one of the Taliban’s more vocal supporters” on the political message board Free Dominion. Baglow also sued Connie and Mark Fournier, the owners of Free Dominion, claiming he told them about the comment and they chose not to remove it.
The judge ultimately ruled against Baglow but named both of the defendants publishers. She ruled that site owners are publishers, but they aren’t expected to monitor every comment or post looking for any defamatory statements.
Rather, they must remove a post or statement if it’s brought to their attention as being defamatory. According to law professor Michael Geist, making a correction or removing a post is usually all someone is really after when they believe they’ve been defamed.
The difficulties of understanding defamation law
Connie Fournier believes defamation laws are too broad and that applying them to the blogosphere hampers free expression.. Fournier and her husband were sued for defamation five times because of content posted on their political message board Free Dominion, before choosing to shut down the site in 2014.
“If I just take things down every time someone claims something is defamatory then we really aren’t having a good political discussion,” she said. “In forums and in blogs people have the attitude of sitting around talking to their friends. People who are experienced reading blogs and forums understand this and don’t put the same weight as if they read it on a newspaper site.”
But others say people posting or commenting on blogs—whether they consider themselves to be journalists or not—have the responsibility to understand defamation law and must recognize it as a real risk before they chose to publish something online.
“Just because you’re writing a blog doesn’t give you an excuse to be sloppy, you still need to follow journalistic practices,” says Tom Henheffer, executive director of Canadian Journalists for Free Expression.
“The point of a blog is to generate content and disseminate information publicly, so (bloggers) need to be held to the same standards as journalists.”
Beware of defamation when blogging
With more than 60 million blogs on the internet, it’s important to know that posting on a blog doesn’t give you a free pass to say whatever you want. Whether you consider yourself a freelance journalist or a blogger, you need to make sure you’ve reported ethically and responsibly before you hit “publish.”
Vanessa Hrvatin is a Vancouver-based journalist who is passionate about public health and science reporting. Follow her on Twitter at @VanessaHrvatin.
