The
court distinguished the circumstances from those of Joseph Gutnick
whose claim in Australia over a US publication became a landmark
for internet defamation.
The Canadian ruling also overturns a finding in January last
year that the Ontario courts were entitled to hear the case, a
decision that worried online publishers worldwide because it
stretched the rules of jurisdiction.
The dispute dates back to 1997, when Guinean-born Cheickh
Bangoura worked for the United Nations in Kenya. In January that
year The Washington Post published two articles relating to
Bangoura’s conduct in a previous UN posting on the Ivory Coast. The
first reported allegations made by Bangoura's colleagues that
he was guilty of sexual harassment, financial improprieties and
nepotism. The second repeated the allegations and advised readers
that he had been suspended from his post.
Bangoura denied the allegations. He sued The Washington Post,
its reporters and the United Nations, seeking, among other things,
an order for the newspaper to publish a retraction and damages for
negligence and infliction of mental anguish.
Bangoura was not resident in Ontario at the time of publication
and there were only seven subscribers to the hard copy newspaper in
Ontario. According to court reports, the articles were freely
available online for 14 days after publication, but since then the
full articles were only accessible through a paid archive. Only one
person, Bangoura's lawyer, had accessed the articles through the
paid archive at the time of the court case, although summaries of
the articles, containing the gist of the offending allegations,
continue to be available through the newspaper's free online
archive.
Six years after publication, and almost three years after moving
to the province, Bangoura raised proceedings in an Ontario court
against both the newspaper and three of its reporters, seeking an
injunction, a retraction and damages.
Before the court could rule on these issues, it first had to
decide whether Ontario courts had jurisdiction to hear the case at
all. In January 2004, Ontario's Superior Court of Justice ruled
that they did.
“Admittedly, the plaintiff has resided in Ontario for only two
years, and when the material was first published, he was not in
Ontario,” wrote Mr Justice Romain W M Pitt. “He was, however, an
international public servant, who has found a home and work in
Ontario where the damages to his reputation would have the greatest
impact.”
On the question of a connection between Ontario and The
Washington Post, the judge ruled: “Admittedly, the defendants have
no connection to Ontario, but The Washington Post is a major
newspaper in the capital of the most powerful country in a world
now made figuratively smaller by, inter alia, the internet
… Frankly, the defendants should have reasonably foreseen that the
story would follow the plaintiff wherever he resided.”
Judge Pitt made reference to the landmark Australian internet
libel case, which found that an article posted on the internet is
considered as published at the point where it is downloaded and
read.
That case centred on an article posted onto the Barron's Online
magazine, which is published by US publishing group Dow Jones &
Company.
Australian businessman Joseph Gutnick claimed the article,
published in October 2000, defamed him, and he sued Dow Jones in
Victoria, where his business is headquartered. He argued that the
case should be heard in Australia, because he was only interested
in re-establishing his allegedly damaged reputation there.
Judge Pitt dismissed the argument of The Washington Post and its
reporters that the Ontario courts had no jurisdiction. He
considered Ontario the most convenient forum for the lawsuit.
The newspaper and its reporters appealed. And in a decision
published on Friday, the Ontario Court of Appeal accepted their
argument and dismissed the relevance of the Gutnick case.
“Gutnick was a well-known businessman who resided in Victoria at
the time of the impugned publication,” wrote Judge Armstrong in the
Court of Appeal. “There was evidence that Barron’s had some 1,700
internet subscribers in Australia. Gutnick undertook that he would
sue only in Victoria and only in respect of damages to his
reputation in that state.”
Judge Armstrong concluded that Gutnick's case was unhelpful in
determining Bangoura's issues.
In Judge Armstrong's opinion, the connection between Bangoura’s
claim and Ontario was “minimal at best”, and there was no evidence
that Bangoura had suffered significant damages in the
province.It was not reasonably foreseeable in January 1997 that Mr.
Bangoura would end up as a resident of Ontario three years later,”
he 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.”
Bangoura had not actually sued for defamation or libel, for
reasons unknown to Judge Armstrong. He commented, "In my
view, whether this case is simply a libel case 'dressed up' as
something else does not change the analysis in respect of whether
the Ontario courts should assume jurisdiction."
And the court's unanimous conclusion was that they should not,
given that the connection with Ontario took place three years after
publication when Bangoura moved from Africa to Canada.
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