Although the World Wide Web is now over twenty years old, that is still relatively young compared to other forms of mass-communication, such as printed books, which have been around for over 500 years. In fact, not since the era of Gutenberg’s printing press, has there been such a dramatic increase in humanity’s capacity to disseminate the written word. All in all, this new capacity to quickly publish writings to the entire world has been of great benefit to those that depend on the Internet to expand their knowledge. However, the pervasiveness of the Internet has also, on occasion, been deemed highly detrimental to the reputations of those who have been subjected to libel online. Given its international nature, libel in the Internet context also gives rise to issues of jurisdiction, and this issue was recently addressed by the Supreme Court of Canada in Breedan v. Black.
In the Black case, the Supreme Court had to consider whether or not a plaintiff, who had been defamed on the Internet, had the right to sue to recover damages to his reputation in the Courts of Ontario. The plaintiff (Lord Conrad Black, former chairman of Hollinger International Inc.), had commenced six libel actions in the Ontario Superior Court of Justice, of which four of those actions related to press releases posted on Hollinger International’s website in 2004. It was not disputed that the press releases contained information directed at the Canadian media, and were accessible worldwide, and that these press releases were subsequently re-published in Ontario by various newspapers. Of all of the defendants (some of whom were former business associates of Lord Black) only one was a resident of Ontario.
In its decision, the Supreme Court decided that Lord Black could continue his libel actions in Ontario, as the Ontario Court was the proper jurisdiction for the hearing of these disputes. The Court came to this decision largely because the Court found that the alleged tort had been committed in Ontario. This reasoning was in line with two cases concerning the proper taking of jurisdiction that the Supreme Court had decided that same week. In short, a court will accept jurisdiction over an action when a “real and substantial connection” is found to link the cause of action with the jurisdiction. This “real and substantial connection” is generally established when a “presumptive connecting factor” (that is, a connecting factor that connects the claim with the jurisdiction) is found to exist. In many cases, including the Black case, that presumptive connecting factor will be where the alleged tort was committed. In the case of defamation, that tort occurs upon the publication of defamatory statements to a third party (i.e. a party other than the plaintiff). The question for the Supreme Court to consider, therefore, was where did the publication of the allegedly defamatory statements occur? The Court’s answer was simple: due to the republication of the allegedly defamatory statements by newspapers in Ontario, which was a natural and probable result of the original Internet publications, the publication (and the alleged tort) had occurred in Ontario.
The Supreme Court’s decision in the Black case was clearly made easier by the republication of the alleged libels by newspapers in Ontario. So, the question remains: would publication of the alleged defamatory statements on the Internet alone, by a foreign defendant, be sufficient to allow an Ontario plaintiff to bring an action in his/her home province of Ontario? Unfortunately, there is no easy answer to this question, as the nature of what constitutes a “publication” in Ontario in this type of circumstance was not addressed by the Supreme Court of Canada in the Black decision.
Again, the answer to such a question would depend on whether or not one of the presumptive connecting factors between the subject matter of the litigation and the forum (Ontario) is found to exist. In the Black case, that presumptive factor was the actual commission of the alleged tort in Ontario. Other possible connecting factors include whether or not the defendant carried on business in Ontario. As well, the Supreme Court of Canada leaves open the possibility that other presumptive connecting factors can be established. All presumptive connecting factors generally point to a relationship between the subject matter of the litigation and the forum, such that it would be reasonable for a foreign defendant to expect to be called to answer legal proceedings in that forum (i.e. Ontario). For example, if it could be shown that the foreign defendant in a particular case knew or ought to have known that the defamatory statements would be seen by persons in Ontario, then perhaps the Ontario Courts could properly accept jurisdiction in such a case. Or, if evidence could establish that the website in question was targeted to Ontarians or even routinely visited by Ontarians (or at least Canadians), then a new presumptive connecting factor could be made out.
In closing, we will have to wait for further Court decisions to clarify in what circumstances an Ontario plaintiff can sue in Ontario for Internet defamation that originates abroad. In the interim, readers should keep in mind that, in the specific case of Internet libel that is based out of the United States (those “rate your professional” websites come to mind), even if judgment is obtained in Ontario against such a website and its owners, US laws, such as the Free Speech Protection Act, would likely act to prevent enforcement of any such judgment in the United States. Therefore, only if it could be established that the defamation in question would also be defamatory under US law (which is a much stricter legal test to meet), would an Ontario libel judgment be recognized by a US Court.
James Katz is an Associate with the law firm of BrazeauSeller.LLP. He practices in the areas of litigation and intellectual property. James can be reached at 613-237-4000 ext. 267 or at [email protected]. For more information about James, please visit www.brazeauseller.com.