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Conrad Black Case Targets Net Defamation Jurisdiction Standard

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Monday August 30, 2010
Conrad Black's ongoing legal fight in the United States has attracted considerable attention in Canada, yet my weekly technology law column (Toronto Star version, homepage version) there is a side courtroom battle at home over alleged defamatory content on the Internet that merits closer attention.  The case, named Black v. Breeden, involves postings such as press releases and reports on the Hollinger International, Inc. website that Black claims were defamatory.  Several Ontario media organizations published the allegations contained in those releases.

When Black sued the company's directors, advisers, and one company employee for defamation, the defendants in the case brought a motion to dismiss on jurisdictional grounds, arguing that Ontario was not the appropriate venue for the case since both Hollinger and Black are located in the U.S.  After a judge dismissed the motion, the defendants appealed to the Ontario Court of Appeal.

In a unanimous decision this month, the appellate court upheld the ruling by the motions judge, concluding that Ontario was a suitable venue and that the defamation case could proceed.

Linkages between defamation and jurisdictional questions are not unusual, however, a novel issue before the court was how to treat content posted on the Internet that is accessible to a global audience.  The starting point for jurisdictional analysis in Canada is the real and substantial connection test in which courts consider whether the connection is sufficient to merit asserting jurisdiction over the dispute.

In this case, the court was urged to base its analysis on a "targeting test" (the defendants relied in part on a law review article I wrote in 2001 advocating the adoption of a targeting-based analysis) that would involve considering whether the postings targeted the forum rather than looking at where they were downloaded and read.

The targeting test posits that courts should not assert jurisdiction over online content merely because it is accessible. Rather, there should be evidence that the site actively targeted an audience within the jurisdiction. The criteria for determining targeting remains elusive, but courts have referred to the language and content of the site, terms and conditions posted on the site, as well as awareness that the site's content may have an effect within the jurisdiction. 

While the court concluded that it did not need to formally decide whether to adopt the targeting test, it was satisfied that the statements were in fact targeted at Ontario.  It noted that the press releases posted on the Internet specifically provided contact information for Canadian media and that the company "clearly anticipated that the statements would be read by a Canadian audience and invited Canadian media to respond."

Interestingly, the defendants also raised an alternate argument, asking the court to establish a new exception to the real and substantial connection test for the Internet.  They argued that downloading the offending content was effectively the ‘completion' of the defamation.  Given the possibility of downloads in multiple jurisdictions, the defendants argued that many places could theoretically assert jurisdiction, leading to widespread legal uncertainty.

The court rejected the argument, concluding that judges were perfectly capable of sorting through the issues and ensuring fairness for both sides.  In doing so, it allowed the Black defamation suit to proceed while also providing Internet users and the legal community with greater insight into when Canadian courts will assert jurisdiction over defamation that occurs online.
Comments (14)add comment

Sandy Crawley said:

Crookes v. Newton
Very interesting issue, thank you. Are you aware of the case Crookes v. Newton wherein a the issue is defamation through the presence of a link in a piece of journalism?
August 30, 2010

Eric L. said:

Well, two can play at that game...
Hey Sandy, have you heard of the various studies that suggest that consumers will actually purchase more content if there are less restrictions such as those through draconian copyright laws and DRM?

Hey, I guess if you can bring up something off-topic and not directly respond to Geist's article, then I guess I can do the same to you. :)
August 30, 2010

Bob said:

@Eric L
Why is Sandy off-topic? He's commenting, very relevantly, on a completely different post. This is really importsnt stuff, especially in the context of libel forum shopping and plans in the US to refuse to allow enforcement of foreign libel judgments from countries whose libel laws are more plaintiff-friendly than theirs.
August 30, 2010

Michael Geist said:

Responses
I agree @Bob - I thought Sandy's comment was totally on topic. Given that I'm still being sued by Crookes for a comment that was briefly on this blog, I'm well aware of the Crookes v. Newton case. I believe that CIPPIC has sought leave to intervene in the case to address the linking issue.

MG
August 30, 2010

Hank Molenaar said:

retired
The impression that Conrad Black has accumelate his millions from to start from bying Dominion stores and skimmed off the PENSION FUND for 68000000 $ and through the courts to return 30000000 $
and have repeated this for many companies
it was open season on pension funds
I can not see why he should have a break
August 30, 2010

Bob said:

@Hank
I don't disagree on one level, but the outcome of this goes well beyond Conrad Black.
August 30, 2010

Sandy Crawley said:

@MG
Ah, I hadn't realized you'd been sued by Crookes. I guess that precludes comment for pragmatic reasons. But , since I haven't been sued, let me say that I think the potential damage of suing for defamation "by association" as it were.

And Eric., for the record, I am aware of the studies you refer to and I am also not a theological supporter of DRMs. I remain open to any creative solution that upholds the principle of compensation for use in a reasonable fashion.
August 30, 2010

Sandy Crawley said:

@MG
..oops, that sentence wasn't finished.."as it were,greater than the jurisdictional matter in the Conrad Black case".
August 30, 2010

Boothie said:

The radical extremist position
The radical extremist position here again, is that we cannot authoritatively map an IP address to a single, liable citizen. Consequently, defamation is not enforceable online, just as copyright isn't. Information, once online, can no longer do enough harm to merit outlawing anonymity, and putting the power to censor, or chill speech into the architecture of the net.
Artists must simply find other markets, and the third world will get to learn from us without paying us for it, but so what?
August 30, 2010

Sandy Crawley said:

@Boothie
I appreciate the radical extremist interpretation. I would go so far as to agree that neither defamation nor copyright are enforceable online in any radically extreme sense of the term enforceable. However, in the sense that speed limits for automobiles are enforceable I suggest that it is still feasible to create incentives for a socially and economically responsible attitude towards the dissemination of original works online that includes compensation for rights-holders. If its name is something other than "copyright", so be it.For the time being , that's the name we have for the legal concept.
August 31, 2010

Jack Robinson said:

Internet Ethics and Liabilty Issues... Or a lesson in Scumbag Science 101?
Given or not that Lord Black of Avuncular Avarice has become, since his bad boy days at Upper Canada College selling stolen exam answers to equally scuzzy Friedmanite wannabes... become the teflon Man We Both Love to Hate and Wish We Could Share Some Beluga With... I'm astonished that this cornered rat weasal appears to have the gravitas to not only cause debate regarding the veracity, legitimacy and legality of Internet-posted reportage of verifiable events... but could well provide his Swine Network of wealth-connected thugs with both legal impugnity and a viable mechanism of 'ownership by copyright' for their future dystopian Shock Doctrine crimes against us unwitting Ostrich Nation accomplices.
August 31, 2010

Sandy Crawley said:

@Jack Robinson
Go ahead, Jack, tell us how you really feel about Lord Black. Don't hold back.
August 31, 2010

Philip King said:

...
This same issue was raised in Bangoura v. Washington Post, where Bangoura sued in Ontario in regard to material that was posted on the Washington Post website and which Bangoura argued was defamatory. When the Post moved to stay the proceedings in Ontario, the trial court applied the Muscutt factors and held that there was a close and substantial connection to Ontario. The basis of the trial decision was that internet defamation takes place wherever the plaintiff resides, as that is where he is affected by the published material. The Ontario Court of Appeal allowed the appeal, ruling that the trial court improperly applied the Muscutt factors. The OCA concluded that on the facts there was no real and substantial connection to Ontario.

In Bangoura, there was virtually no connection to Ontario, and Bangoura himself did not move to Ontario until years after the material was posted. There was no evidence that anyone in Ontario, other than Bangoura's lawyer, had read the posted material.

It seems to me that the court has ruled in a consistent manner with its decision in the Black case, in which there were many factors that were connected with Ontario.

While the 'targeting' test may be useful in some cases, I think that the existing test from Muscutt, as modified by Van Breda, can be used to determine whether there is a real and substantial connection to Ontario and thereby dispose of most cases.

In this way, the test remains whether or not on the facts there is a real and substantial connection to Ontario, and this is, in my opinion, as it should be. Accordingly, in my mind, the recent decision in Black does not break new ground, and I expect the SCC to dismiss the appeal.
January 31, 2011

Craig Hubley said:

The "targeting" test may do more harm than good
By making it harder and harder to apply absurd libel laws from obscure or corrupt jursidictions like Ontario and BC, presumably fewer abuses of the "laws" of such places get to trial. This advantages defendants who can pay for lawyers to make the intricate arguments for such change of venue, but it also permits laws to remain in place that would otherwise be changed as a result of abuses from those obscure or corrupt places.

Would anyone care about BC's absurd libel laws if Wayne Crookes was not actively abusing them to harass major US corporations such as Google or major institutions such as Wikipedia? How do we get these laws changed, and SLAPP plaintiffs effectively punished (by shame, boycott, criminal charges for perjury or racketeering), if we have allowed the heavy hitters to argue out of the jurisdiction, leaving the little guys to fend for themselves, typically without any local representation?

I say make the big guy face the music from wherever, so the big guy's lawyers set the precedents there as well.

When "little guys" includes all political commentators in the world, and the threat to them includes warrants for disclosure of information that directly causes they or their families harm, this becomes a grave human rights concern. That's the real issue in Newton, that the whole thing is about a call for help to defend free political speech - that ought to entitle the material to *more* not *less* protection. [One can only wonder whether Justice Prowse actually intended the case to be settled on some grounds other than mere "publication"].

[Regardless of her intent], a better solution for free political speech and public figure criticism (like that of Black) is global anti-SLAPP law so that civil suits cannot be used to expose commenters on any political or public issue matter anywhere in the world. This could be enforced from outside on corrupt jurisdictions (such as British Columbia or Ontario) by methods like those used to discourage harassment of Julian Assange, or those used to end other abusive practices like those of apartheid. Such actions can be launched or defended from anti-SLAPP jurisdictions like California, Quebec or Iceland. Making it a high priority to investigate and prosecute cronies of individuals filing SLAPP suits and to end the political, judicial and legal careers of those who file them or propagate them with bad rulings, seems more effective to me than any "targetting" test. Let's end the real problem: the "common law of libel" and it's "reverse onus" making the innocent guilty until they can afford to answer in some remote court.

Newton sadly has been misrepresented on its substance: The publication arguments simply distract from the real issue which is that disclosure of public issue comments origins and authors does more harm than good, unless the commenter has voluntarily chosen to be identified, and that public figures (like Black), who actively engage in criticism of public issues and influence the media (and owners and publishers) have no right to silence nor even benefit of the doubt when it comes to criticism of themselves. For many years Black more or less ran the most right wing paper in Canada, so it's more than a bit absurd to argue he can't respond in the press to any allegations about his honesty or character.

"Right to reply" in other words should be enough for Black, and in Newton and its related case Crookes v. openpolitics.ca Crookes had the "right of refactor" which is certainly enough. Neither should have got anywhere near the Supreme Court of Canada, lower courts should have dismissed both suits as vexatious SLAPPs.
September 17, 2011

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