Canadian Court Asserts Jurisdiction Over the Washington Post in an Internet Libel Action

In a decision released January 27, 2004, Justice Pitt of the Ontario Superior Court of Justice dismissed the motion of the defendant Washington Post to stay a libel action brought by the plaintiff, Cheickh Bangoura. This will allow the plaintiff to pursue his claim arising from alleged defamatory statements published on the Internet by the defendant continuously since January 1997. The primary issue in the motion was whether the Court had jurisdiction over a foreign publisher of allegedly libellous statements concerning an international civil servant with residency status in Canada, where the medium of distribution of the statements was the Internet. While an Ontario Court traditionally requires a "real and substantial connection" between the tort and the jurisdiction, Justice Pitt noted that the actual test is a balancing approach based on the factors set out in Muscutt v. Courcelles (2002), 60 OR (3d) 20 (CA). The broad reach of the Internet and the renown of the newspaper itself were factors in demonstrating the multi-state nature of the action. Justice Pitt held that the defendant "should reasonably have foreseen that the story would follow the plaintiff wherever he resided." The Court was also attracted by the reasoning of a recent Australian case, Dow Jones & Company Inc v Gutnick, [2002] HCA 56, in which the High Court of Australia approved the assertion of jurisdiction where an American corporation published material through Barron's Online that was allegedly defamatory of Mr. Gutnick, who was living in Australia. For a recent newspaper article highlighting the decision and surrounding factors, see: http://makeashorterlink.com/?C5AC25E47. For the full text of the decision in Bangoura v Washington Post (January 27, 2004), OSCJ 03-CV-247461CM1, visit: http://www.canlii.org/on/cas/onsc/2004/2004onsc10181.html. For the full text of the decision in Dow Jones & Company Inc v Gutnick, [2002] H.C.A. 56 (10 December 2002) see: http://www.austlii.edu.au/au/cases/cth/high_ct/2002/56.html. Summary by: Nicholas J. Whalen