NEWS MEDIA UPDATE · CANADA · Libel · Sep. 23, 2005
Court reins in Internet jurisdiction in defamation case
Sep. 23, 2005 · A Canadian court has no jurisdiction over The Washington Post in a defamation case based mainly on the publication of two stories on the newspaper’s Web site, the Court of Appeal for Ontario ruled Sept. 16, overturning a lower court decision. At the time of the articles’ publication in 1997, Ontario had only seven subscribers who received the Post daily, the plaintiff was not an Ontario resident, and the only person who accessed the articles on the Post’s electronic archives was the plaintiff’s lawyer.
“It’s really a great decision,” said Kurt Wimmer of Covington & Burling, co-counsel who also represented an American media coalition in the case. “It recognizes the reality of Internet publishing and that it’s not fair to force publishers to submit to jurisdiction anywhere in the world just because the story was downloaded.”
The Reporters Committee for Freedom of the Press was a member of the media coalition.
The court focused on the location of publication and found “there is simply no real and substantial connection between this action and Ontario and that it is not appropriate for the courts of Ontario to assume jurisdiction,” Justice Robert P. Armstrong wrote for the court.
Cheickh Bangoura sued The Washington Post over articles published Jan. 5 and 10, 1997, when he worked for the United Nations in Nairobi, Kenya. The articles detailed accusations of sexual harassment, financial improprieties and nepotism during a previous U.N. position in Ivory Coast. Bangoura eventually moved to Ontario in 2000 and filed suit in April 2003.
The trial court ruled in January 2004 that it had jurisdiction over the Post because, among other reasons, the paper should have foreseen the story would follow Bangoura wherever he lived.
“The trial court’s decision was so far out of the mainstream that it was a great relief to have it overturned,” Wimmer said.
The appellate court agreed, ruling that it “was not reasonably foreseeable in January 1997 that Mr. Bangoura would end up as a resident of Ontario three years later,” Armstrong wrote. “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.”
Besides creating confusion for foreign publishers, the lower court’s ruling could also harm Canadian interests, the appeals court ruled. The ruling “could lead to Ontario publishers and broadcasters being sued anywhere in the world with the prospect that the Ontario courts would be obliged to enforce foreign judgments obtained against them,” Armstrong wrote.
This case is one of the first to recognize the growing problem of jurisdiction in the Internet age. Generally, a court can claim jurisdiction for defamation if the article was read in its district. This general rule, however, can easily lead decisions such as in the Bangoura trial court.
“We’re hoping to start seeing a trend in the right direction,” Wimmer said. “We’re hoping we’ll get more cases that recognize that you cannot have jurisdiction anywhere you download a story — that’s just unworkable. If you look at the market of Internet publishing, it’s becoming essential. It’s part of the business reality for publishers.”
By not knowing what law will apply, publishers could either start self-censoring their stories in order to comply with the strictest defamation laws, or publishers would just start preventing Internet access to their stories in certain countries, according to Wimmer.
(Bangoura v. The Washington Post, Media counsel: Brian MacLeod Rogers, Toronto, Ontario) — CM