[IP] Canadian Courts Deliver Mixed Rulings to U.S. Newspapers
Begin forwarded message:
From: Michael Geist <mgeist@xxxxxxxxx>
Date: September 26, 2005 8:06:14 AM EDT
To: dave@xxxxxxxxxx
Subject: Canadian Courts Deliver Mixed Rulings to U.S. Newspapers
Dave,
Of possible interest to IP -- my weekly Law Bytes column (posted
below) reviews the Bangoura and Burke cases, the two recent Canadian
Internet jurisdiction decisions involving online content from the
Washington Post and New York Post. The Ontario Court of Appeal
declined to assert jurisdiction in the Bangoura case, which involved
a suit against the Washington Post over an article written in the
mid-1990s but still available online. The court expressed concern
that "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."
Meanwhile, several days later a B.C. court asserted jurisdiction in
the Burke case, a dispute over a NY Post hockey column, concluding
that a lawsuit in the province was foreseeable.
Toronto Star version at
<http://geistbangouraburke.notlong.com>
Freely available hyperlinked column at
<http://www.michaelgeist.ca/index.php?option=content&task=view&id=966>
MG
CANADIAN COURTS DELIVER MIXED RULINGS TO U.S. NEWSPAPERS
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.
--
**********************************************************************
Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa, Faculty of Law
57 Louis Pasteur St., Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319 Fax: 613-562-5124
mgeist@xxxxxxxxx http://www.michaelgeist.ca
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