Canadian Net libel case rejected

Ontario Court declines jurisdiction in Washington Post case

The Ontario Court of Appeal yesterday allowed an appeal from a decision allowing the Washington Post to be sued over Internet publication of an article in the Canadian Province.  

The action, brought by former UN official, Cheickh Bangoura, complained that two articles published in the Washington Post in January 1997 were defamatory of him. Although at the time of publication, Mr Bangoura was not resident in Ontario, he subsequently moved there before commencing proceedings.

At the time of publication of the articles, there were only seven subscribers to the Washington Post in Ontario.

Reversing the first instance decision which allowed the claim to to be brought in Canada, the Appeal court held that “the connection between Ontario and [the Plaintiff’s] claim is minimal at best. In fact, there was no connection with Ontario until more than three years after the publication of the articles in question.”  

The Court distinguished the Gutnick decision from the Australian High Court on the basis that the Claimant in that case had a real connection with his home State of Victoria in which he had chosen to sue and in which there had been a substantial publication.

The Ontario Court also heard submissions from a 52-member coalition of media organisations (including CNN, The New York Times, Time Magazine and The Times of London) concerned about the impact of the first instance decision. The coalition said that its intervention in the case “speaks of the deep concern with the judgment under appeal and its implications for all those who value freedom of expression. The extraordinary nature of the ruling presents real dangers to the continued development of the Internet and global communications.”

Although thanked for their submissions, the Court refused the coalition’s invitation to adopt a new approach for identifying the appropriate jurisdiction for defamation cases:

“… I do not find it necessary to adopt any of the particular approaches that are proposed by the Coalition. It is not necessary to do so in order to decide this case. It may be that in some future case involving Internet publication, this court will find it useful to consider and apply one or more of the proposed approaches. However, that is for another day.”

The decision is unlikely to have any impact in the UK. The Court of Appeal has set out the approach to be adopted in Internet cases in King v Lewis and Jameel (Yousef) v Dow Jones & Co. Inc.