In Baglow v Smith, 2015 ONSC 1175, Justice Polowin writes a detailed decision regarding defamation in the online world. She states that the online forum operator (message board operator) was a publisher and therefore liable for the defamatory comments made on it. However, ultimately, she finds the defendant operator not liable because they had “successfully asserted the defence of fair comment.”

What was not addressed was whether the online forum operator could have insulated themselves from liability through an exclusion of liability clause. The exclusion of liability clause could have been contained in a click wrap agreement or a browse wrap agreement. A click wrap agreement is when you press you “Agree” to some terms and conditions (like when you download software). A browse wrap agreement contains terms and conditions for use of the website at the bottom of the screen.

The judge should have addressed whether or not such a clause would be enforceable.  Would there be any overriding public policy that would justify the court’s refusal to enforce it? Given the increasing proliferation of message boards and platforms like Yelp, it would be nice to know whether these sites can insulate themselves from liability for defamatory comments through a simple exclusion of liability clause.

In Tercon, Justice Binnie writes about when an exclusion of liability clause would be unenforceable:

Conduct approaching serious criminality or egregious fraud are but examples of well-accepted and “substantially incontestable” considerations of public policy that may override the countervailing public policy that favours freedom of contract.  Where this type of misconduct is reflected in the breach of contract, all of the circumstances should be examined very carefully by the court.  Such misconduct may disable the defendant from hiding behind the exclusion clause.  But a plaintiff who seeks to avoid the effect of an exclusion clause must identify the overriding public policy that it says outweighs the public interest in the enforcement of the contract.  In the present case, for the reasons discussed below, I do not believe Tercon has identified a relevant public policy that fulfills this requirement.

Baglow v Smith: