The Canadian Internet law community is buzzing about this month’ s release of two new cases from Ontario and British Columbia that focused on the jurisdiction of Canadian courts over content posted online. Involving two leading U.S. newspapers, a prominent National Hockey League executive, and allegations of corruption in the United Nations, these cases are likely to attract significant global attention.
The Ontario case is an appellate decision concerning a defamation suit launched against the Washington Post by Cheickh Bangoura, a former U.N. official. Bangoura moved to Ontario several years ago, but was stationed in Kenya in 1997 in a U.N. Drug Control Program when the Washington Post featured several articles accusing him of misconduct and mismanagement.
Bangoura sued the Washington Post in the Ontario courts in 2003, claiming that the articles were untrue yet remained available on the Washington Post website and therefore accessible to residents in Ontario. The newspaper sought to have the case dismissed, arguing that the Ontario courts should not assert jurisdiction over the matter since there was no real and substantial connection with the province.
In a surprise decision, an Ontario judge denied the Washington Post’ s motion, ruling that the paper “should have reasonably foreseen that the story would follow the plaintiff wherever he resided.”
That analysis appeared unreasonable to many commentators.
For example, I argued in the Star that “it seems unfair to expect the Washington Post to foresee that Bangoura, resident in Kenya at the time the article was first published, would years later reside in Ontario and sue in Ontario courts. Taken to its logical conclusion, the Ontario decision suggests that online publishers face potential liability in every jurisdiction, since foreseeability would be a fluid concept that literally moves with the prospective plaintiff.”
Not surprisingly, the prospect of global liability caught the attention of media organizations worldwide. Dozens banded together to support the Washington Post in its appeal of the lower court decision.
Earlier this month, the Ontario Court of Appeal sided with the newspaper, 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."
While publishers may have breathed a sigh of relief with the Bangoura decision, the British Columbia courts provided an immediate reminder that the case did not signal a rejection of Canadian courts’ ability to assert jurisdiction over out-of-country publishers, but rather limited jurisdiction to instances where it is foreseeable.
The B.C. case involved a defamation lawsuit launched against the New York Post by Brian Burke, the former General Manager of the Vancouver Canucks. Burke objected to a column by the newspaper’ s hockey columnist Larry Brooks about his role during the infamous violent on-ice incident between Todd Bertuzzi and Steve Moore.
After Burke sued in the B.C. courts, the New York Post moved to dismiss the case, arguing that the Post did not maintain a physical presence in the province and that the court should not assert jurisdiction over the matter. The B.C. judge denied the Post’ s motion, relying heavily on the lower court (and now rejected) Bangoura decision.
Since the B.C. court relied on an overturned Ontario decision, there is a temptation to argue that the Burke case is similarly flawed and therefore ripe for appeal. The Post may indeed appeal, however, a closer examination of the two decisions reveals that their reasoning is fairly consistent despite the conflicting outcomes.
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.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at email@example.com or online at www.michaelgeist.ca.