Long Arm Jurisdiction in Online Defamation

26 Sep ’05

Michael Geist follows up his recent posts on the Bangoura and Burke decisions with a Toronto Star article on this issue. I posted on this recently also.

I agree with Michael, but it’s also worth pointing out that the reason this is an issue is because plaintiffs (including some who would, but for some tenuous connection to a Commonwealth jurisdiction, ordinarily have to sue US publishers in US courts) are seeking to avoid the application of the “actual malice” rule in US defamation law. This rule requires plaintiffs who are public figures or public officials (and these are the people who are generally the subject of publications) to demonstrate that the publisher had actual malice or reckless negligence before there is liability. The difference in standards can mean the difference between a loss and an opportunity to issue a press release claiming vindication. It can also mean the difference between a vigorous, aggressive press and a more timorous media.

Personally, I’ve always thought the Sullivan (the US case that established the rule) standard to be a more suitable standard for liability. But in any event, a significant cause of the presence of foreign plaintiffs suing in Canadian, UK and Australian courts for defamation is precisely to avoid that standard.

I’ll be posting more on this in the next few days.

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