New Canadian Internet Jurisdiction Cases

22 Sep ’05

Two internet jurisdiction cases released in a week may be business-as-usual in the U.S., but it’s a rarity in Canada.

Burke v. NYP

The British Columbia Supreme Court has in Burke v. NYP Holdings, Inc. asserted jurisdiction in a defamation suit brought by former Vancouver Canucks manager Brian Burke against the New York Post. According to the Globe, the “defamation suit arises from a sports column by Larry Brooks that appeared Feb. 27, 2005, in The New York Post about an incident in March of 2004, when Vancouver Canuck Todd Bertuzzi punched Colorado Avalanche player Steve Moore, causing severe injuries. The column made allegations about Mr. Burke, which he denies.” The column was published in the paper and also appeared in its website. The Court’s decision ends on the following note:

The interest in hockey and those who were involved with it and the particular incident in Vancouver on March 8, 2004 has taken on significance in the world of sport and world of hockey worldwide. Having chosen to broadcast the Column on a website which is available worldwide to those who speak English, the Post can hardly complain that Mr. Burke would choose a jurisdiction most convenient to him to have his defamation action heard.

It’s also noteworthy that the Court was influenced by the fact that requiring Burke to sue in New York would have subjected him to New York defamation law, which is apparently significantly less favourable to the plaintiff than the law of British Columbia:

I also accept that to require Mr. Burke to try this case in New York State would unfairly deprive him of a significant juridical advantage, given the differences that exist between defamation laws in British Columbia and in New York. In Hill v. Church of Scientology, [1995] 2 S.C.R. 1130, the Supreme Court of Canada expressly considered and rejected the importation of First Amendment Standards in the United States into Canadian defamation law as the Court rejected the approach taken in New York Times Co. v. Sullivan, 376 U.S. 254 (1964):

The New York Times v. Sullivan decision has been criticized by judges and academic writers in the United States and elsewhere. It has not been followed in the United Kingdom or Australia. I can see no reason for adopting it in Canada in an action between private litigants. The law of defamation is essentially aimed at the prohibition of the publication of injurious or false statements. It is the means by which the individual may protect his or her reputation which may well be the most distinguishing feature of his or her character, personality, and, perhaps, identity. I simply cannot see that the law of defamation is unduly restrictive or inhibiting. Surely it is not requiring too much of individuals that they ascertain the truth of allegations they publish. The law of defamation provides for the defences of fair comment and of qualified privilege in appropriate cases. Those who publish statements should assume a reasonable level of responsibility….

In conclusion, in its application to the parties in this action, the common law of defamation complies with the underlying values of the Charter and there is no need to amend or alter it. (at pp. 1187-8)

To require Mr. Burke to clear his reputation in British Columbia by forcing him to proceed with an action in New York State under the standards set out Sullivan, supra, would be unfair. Whether the action is heard in British Columbia or whether it is heard in New York, I am satisfied that any damages that Mr. Burke claims were suffered by him in the United States would be subject to the approach taken in Sullivan, supra. Accordingly, I am satisfied that a British Columbia Court can most appropriately decide the issue of the damages suffered by Mr. Burke in British Columbia as a result of the publication of the Column in British Columbia while, at the same time, receiving expert testimony about whether damages in the United States have been suffered as a result of the restrictions set out in Sullivan, supra.

Bangoura v. Washington Post

The Ontario Court of Appeal has in Bangoura v. Washington Post overturned a controversial decision of the Superior Court that asserted jurisdiction in a defamation suit brought against the Washington Post. The basic facts of this case are as follows:

The respondent, Cheickh Bangoura, sued the Washington Post and three of its reporters in respect of two newspaper articles, which he alleges are defamatory. When the articles were published in January 1997, Mr. Bangoura was employed by the United Nations in Nairobi, Kenya. The articles related to Mr. Bangoura’s conduct in a prior posting with the United Nations in the Ivory Coast. At the time of publication of the articles, there were only seven subscribers to the Washington Post in Ontario. At that time, Mr. Bangoura was not an Ontario resident. When the action was commenced, more than six years after the publication of the articles, Mr. Bangoura was a resident of Ontario. The issue before us is whether the Ontario courts should assume jurisdiction in this case.

Michael Geist has a great summary of the decision posted on his blog. A couple of his observations are particularly noteworthy:

The unanimous appellate court had little trouble reversing the decision, 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.”

For an interesting post tying the two cases together, see Michael’s post on the topic today.

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