The Ontario Court of Appeal released its much-anticipated Bangoura v. Washington Post decision yesterday, reversing the lower court' s ruling that asserted jurisdiction over the Post in a dispute over an article published in 1997. The appellate court' s reversal is welcome news since the case had the potential to create a chilling effect on Internet publication.
The lower court decision attracted considerable attention as it stood as perhaps the most aggressive (and wrong-headed) Internet jurisdiction analysis. I characterized the decision as establishing a "moving target" test for Internet jurisdiction, since there was no connection to Ontario when the article was first published (the connection with the province only arose years later when the Bangoura moved from Africa to Toronto).
The unanimous appellate court had little trouble reversing the decision, noting that "the connection between Ontario and Mr. Bangoura' 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." Moreover, the court concluded that there was no evidence of significant harm in the province.
Given that analysis, the court rightly concluded that "it was not reasonably foreseeable in January 1997 that Mr. Bangoura would end up as a resident of Ontario three years later. To hold otherwise would mean that a defendant could be sued almost anywhere in the world based upon where a plaintiff may decide to establish his or her residence long after the publication of the defamation."
The court also provided a couple of comments touching specifically on Internet jurisdiction caselaw. It considered the Gutnick decision and concluded that given the different facts, it wasn’t helpful. Moreover, the court acknowledged the range of Internet jurisdiction tests (including the targeting test). It noted that it did not find it necessary to adopt any of the potential tests for this case, but that it might be useful to consider the analysis in a future case involving Internet publication.