Different Post, Different Outcome

On the heels of the Ontario Court of Appeal Bangoura decision, the B.C. Supreme Court has just released another Internet jurisdiction finding.  Rather than the Washington Post, this case involves the New York Post, which is being sued by former Vancouver Canucks General Manager Brian Burke.  The suit stems from a column by Post hockey columnist Larry Brooks.

The Post sought to have the defamation suit dismissed on jurisdictional grounds, but the judge in this case ruled that B.C. could properly assert jurisdiction over the matter.  The decision relies heavily on the lower court (now overtuned) Bangoura decision and some will be tempted to argue that the Burke decision is wrong and ripe for an appeal.

While the Post may indeed appeal, I think the Ontario appellate decision and this B.C. decision are fairly consistent (though I wish the B.C. court would have avoided the references the Post relying on insurance to deal with the case).  At the heart of both cases is foreseeability.  In Bangoura, the appellate court rightly concluded that the Washington Post could not reasonably foresee facing a lawsuit in Ontario when it published an article about an African resident in 1997.  Using the same analysis, it was arguably foreseeable that the New York Post could face a lawsuit in B.C. when it published its article about a B.C. resident and an incident that took place at a hockey game being played in Vancouver.  The Post argued that its website did not target B.C, yet a targeting analysis, which would examine both the site and the article, would likely reach a different conclusion.

The two decision illustrate that the divide between the U.S. on Internet libel (Young) and the Commonwealth countries (Gutnick in Australia, Lewis in UK, Bangoura and Burke in Canada) remains.  Bangoura did not signal a rejection of the view that Canadian courts can assert jurisdiction over out-of-country publishers, but rather that the assertion of jurisdiction must be foreseeable.  It seems to me that it was not foreseeable in Bangoura, but was foreseeable in the Burke case.

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