The British Columbia Supreme Court today dismissed with costs one of the Crookes libel lawsuits. The suit against Yahoo!, MySpace and a group of individual defendants, which centred on postings on a Yahoo Groups forum, was dismissed on jurisdictional grounds. Yahoo successfully argued that it was not subject to B.C. jurisdiction in this case since it has no offices in Canada (as opposed to Yahoo Canada), is not registered to do business in Canada, and does not maintain servers for Yahoo Groups in Canada.
Given the lack of connection to Canada, the court ruled that Crookes needed to demonstrate that the alleged defamation was committed here. In order to do so, he needed to show that the allegedly defamatory postings were "accessed, downloaded, and read by someone in British Columbia." The judge concluded that Crookes failed to tender such evidence and therefore dismissed the case. Other arguments – including a real and substantial connection analysis or the jurisdictional clause in the Yahoo terms of use were not addressed by the court.
law clerk
While I am happy with the result, I do question the logic behind it. I don’t believe that the Real and Substantial Connection test can be reduced to such a simple requirement/threshold of a single person, effectively any person – inluding for example a lawyer’s secretary – reading the offending material in BC and swearing an affidavit to that extent.
As an affected defendant, I didn’t know this was going public! I received the finding last night. I was going to wait to see if Crookes filed an appeal first.
One thing worth adding this that the GPC_Members Yahoo group was private, members-only, so the audience who read it is actually quite limited. Crookes himself is not known to have direct access to it. He has someone who is who sends him stuff. That person’s whereabouts are described as ‘elsewhere’ — that is, not BC.
If Crookes fails to appeal (he has 30 days), or if his appeal fails, a good portion of the lawsuit against myself (and several others) is gone, pending a judge’s agreement.
He is likely going to need to produce someone who saw the material as published — that is, viewed on their computer as they accessed the original. I don’t see Crookes’ lawyer providing it to a legal secretary as working. That’s no more credible than the lawyer publicly publishing the material, admitting it, and blaming me for any alleged defamation stemming from it.
Curiously, despite not showing that anyone in BC read the material, he was still able to get Yahoo to remove it in August 2006. I did not know until many months later that the deletions were other than a strange accident or a hacker.
Now, as for his claims of more public libel on wikis and blogs, it remains to be seen what standard applies there. It always was a bit much to be able to demand that content visible to the world should be removed from the Internet because someone in one jurisdiction with excessively restrictive libel law claims it to be libel. I makes far more sense to remove it from only the jurisdiction in question — after a court order is granted. The is technologically possible, and can be enforced by either the provider of the information, or Internet providers in BC. Is this any less onerous than demanding a book to be removed from BC store shelves?
BC’s libel laws outrageously allow a plaintiff up to two entire years to advise a defendant of intent to proceed. (In Ontario, it’s two months.) Maybe we should start requiring our readers to NOT be from BC prior to showing them content? Perhaps then BC would become a little more reasonable?
Think of it as a strike.
“Is this any less onerous than demanding a book to be removed from BC store shelves?”
Should have read:
“Is this any more onerous than demanding a book to be removed from BC store shelves?”
My bad.