A (striking) CBC reporter, Benoît Ferradini, interviewed me over the weekend about the recent Burke and Bangoura decisions concerning jurisdiction in online defamation cases. Michael Geist is also interviewed in the piece. The interview is in french at CBCUnlocked.com. I’ve set out below an extract (slightly edited) of some notes I prepared for him for the story.
The issue here is not whether one can sue for defamation by a publisher of an online publication, but to what extent one can choose the place where one sues for defamation from online publication. The question of whether one can sue has been settled for a while now, and the courts in various jurisdictions have decided that in the case of defamation, like many other areas of the law, the internet will not be treated differently than other forms of communication. Burke v. NY Post may well be the first case in BC, but there are now several cases elsewhere that establish this principle. The problem that is emerging, though, is the problem of jurisdiction. Laws of different countries treat defamation differently, but the internet crosses all borders.
The internet has dramatically extended the reach of publishing and courts are still wrestling with the exquisitely complicated problem of how to address the territoriality of laws, including the law of defamation. In the case of defamation, this is important because many publishers are in the US and US defamation law is more favourable to the publisher than the law of other common law countries: in the U.S., if the plaintiff is a public official or public figure, the plaintiff must show ‘actual malice’ in order to succeed, and US courts will generally refuse to enforce judgments from elsewhere that would not have been granted under the actual malice standard. Another important difference is that in Europe and the Commonwealth, the rule generally is that every separate instance of a statement being received is a separate act of defamation (meaning it can be litigated in every different place where it is received), while in many states in the US only one claim may be made.
In the Commonwealth, Courts will generally assume jurisdiction if there is a ‘real and substantial connection’ with the jurisdiction. A typical example is a case where a person resides in a place and the publication is read there, even if only on the internet, and the person’s reputation is damaged. The famous Australian case of Gutnick vs. Dow Jones is a good example. Gutnick sued Dow Jones, the publishers of WSJ.com, in Australia for defamation. The evidence was that the publication had 1,700 online subscribers in Victoria, the state in Australia where the lawsuit was filed. After appeals all the way to Australia’s highest court, the court took jurisdiction, and Dow Jones later settled with Gutnick for about US$440,000. (Had the case been heard in the U.S., because of the US actual malice requirement I mention above Dow Jones would very possibly have won, and saved that money.)
So plaintiffs try to sue US publications in the Commonwealth, publishers try to have cases heard in the US, and these jurisdictional controversies arise.
(Note: as a practical matter, many US publishers will still be immune from defamation suits outside of the US because they will not have assets in the foreign jurisdiction. This means the plaintiff has to take the foreign judgment to the US to get it enforced against the publisher’s assets in the US, and US courts will generally prevent enforcement in the US of a foreign defamation judgment that would not have been given if tried under US laws).
The Burke v. NY Post case is another example. Naturally, Burke preferred to sue in BC because it would have been easier to win there than in the US. The Court considered that there was a sufficient connection with BC and took jurisdiction: the plaintiff was a resident of BC when the statement was published and the events that were the subject of the statement occurred in BC. But there were no copies of the paper purchased in BC, and there was no evidence concerning access to the NY Post’s website from BC during the one week that the article was available online. However, the article was read by a BC radio journalist, Dan Russell, who then repeated the statements to Burke in a radio show broadcast in BC. (Note: it’s interesting that, as far as I know, Russell is not being sued – even though repeating someone else’s defamatory statement is defamation as well. Assuming he can still do it later, suing the radio station may be a way for Burke to keep the case in BC, if it ever comes to this).
The recent Ontario case of Bangoura v. Washington Post is another example. But in Bangoura, the Ontario Court of Appeal rejected jurisdiction because there was insufficient connection between the alleged defamation and Ontario: the plaintiff was not a resident of Ontario at the time the statements were made, the underlying events did not occur in Ontario, only 7 copies of the paper were delivered to Ontario, and the only person in Ontario to access the article on the web once it was moved to a paid archive two weeks after publication was Bangoura’s lawyer (there was no evidence concerning how many people in Ontario accessed the article during those two weeks). The Court noted that there was no evidence that any injury had been suffered in Ontario.
I think the judge in Burke may have erred. He relied on the decision of the Court below in Bangoura, before it was overturned, and as we now know, the original Bangoura decision misapplied the law on jurisdiction. And there seems to have been no evidence before him about whether or not the article was even read in BC, other than it being read and then repeated by one radio journalist. So, I think the case is certainly ripe for appeal, and it could have an impact on the issue of jurisdiction.
So on one hand, the internet has changed nothing, because the rule for a long time, at least in the Commonwealth, has been that a Court will take jurisdiction in a defamation case if there is a meaningful connection to the jurisdiction – such as a statement being read or heard by people in the jurisdiction, or evidence of damage to reputation in the jurisdiction. This was the case when publication was principally by newspaper, it did not change when radio and TV began to push the boundaries of jurisdiction, and it appears that it will not change now with the internet.
Many would say this is not a bad thing, because the underlying responsibility of the publisher should be the same, regardless of how broadly a statement is published within or across a jurisdiction, and regardless of the mode of publication. After all, why should a border matter and why should the mode matter? Whether it is a printed paper or a webpage that is read, or a radio broadcast as opposed to a podcast, the effect of a damaging statement is the same. The paper versions of many publications will inevitably become less relevant as the publishing industry moves online (we’ve seen a further step in this recently as the New York Times has moved some of its op-ed comment pieces from its free to its paid section), and publishers certainly understand, and hope to profit from, publication worldwide.
But on the other hand, because publishers now publish to a worldwide audience, they are exposed to litigation worldwide, and where US publishers are involved it has created a controversy over where one can sue them for defamation. US commentators therefore generally disagree with the view that jurisdiction ought to be based upon a connection to where the statement is read or heard because this removes them from the protections they are entitled to under US law.
I don’t think this will restrain publishing on the internet. We are too far down the road for that to happen. The internet has profoundly changed the landscape for publication – publication is now cheaper, easier and faster than ever before – and we are seeing the effects in the forms of web publishing, web radio, blogging, podcasting and new forms no doubt soon to come. The internet is responding powerfully to a basic human need to communicate and to create community, and that will continue. If anything, this will place increasing pressure on U.S. publishers to be cautious of foreign defamation laws, and over the long run it will probably cause some harmonization of differing laws. But as I noted above, the practical implications of enforcing judgments against US publishers in foreign countries with no assets abroad will to some extent minimize the concern. And there hasn’t been a rash of lawsuits in foreign countries against US online publishers.