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.