My weekly Law Bytes column (Toronto Star version, freely available hyperlinked column) reviews the Bangoura and Burke cases, the two recent Canadian Internet jurisdiction decisions involving the Washington Post and New York Post. The Ontario Court of Appeal declined to assert jurisdiction in the Bangoura case, expressing concern that "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." Meanwhile, a B.C. court asserted jurisdiction in the Burke case, a dispute over a hockey column, concluding that a lawsuit in the province was foreseeable.
I argue that at the heart of both cases is the issue of foreseeability. While the Bangoura appellate court rightly concluded that an Ontario suit was not foreseeable, the facts of the Burke case, which involved an article about an incident involving a B.C. resident at a hockey game being played in Vancouver, are far different. The B.C. judge was on safe ground concluding that the Post knew, or ought to have known, that the article would have a significant impact in B.C. and potentially lead to litigation.
Moreover, the two Canadian decisions are consistent with the legal approaches found in Australia and the United Kingdom, which have both adopted similar tests to those articulated in the Bangoura and Burke cases (the notable exception to this approach is the United States, whose courts have been reluctant to hold out-of-state publishers with no physical connection liable for online postings).
Last week’s decisions clarify an important area of Canadian Internet law. While the potential for legal liability arising from online publishing has not been eliminated, the Canadian courts have provided all publishers with greater certainty about the risks associated with the online environment.