Focus: Defamation – July 2004
Moving targets: defamation over the Internet
In brief: Partner Belinda Thompson (view CV) and Lawyer Anne Tyedin report on a controversial Canadian defamation case that could have legal implications for online publishers.
Background
In Bangoura v Washington Post 235 DLR (4th) 564 (the Bangoura case), the Ontario Superior Court of Justice ruled that it had jurisdiction to hear an Internet defamation case against The Washington Post, an American publisher. In the decision, the Ontario Superior Court referred with approval to the judgment of the High Court of Australia in Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 (Gutnick), which held that material was published on the Internet for the purpose of Australian defamation law when the material was downloaded. This allowed Mr Gutnick to continue an action for defamation in the Supreme Court of Victoria against Dow Jones in relation to an article on its website that had been downloaded in Victoria and had allegedly damaged Mr Gutnick's reputation in that state, notwithstanding that the article was posted onto the Internet in America. The circumstances of this Canadian decision, however, were somewhat different – the plaintiff developed his reputation in Ontario years after the material was first published by The Washington Post.
The decision
The plaintiff, Mr Cheickh Bangoura, had been employed by the United Nations from 1987 to 1997 and had lived in a number of different countries in the course of his employment. Mr Bangoura emigrated to Canada in 1997 and had resided in Ontario for two years at the time of the hearing.
In January 1997, while Mr Bangoura was stationed in Kenya, The Washington Post published three articles claiming that Mr Bangoura had been the subject of UN investigations over allegations by his colleagues of sexual harassment, financial improprieties and nepotism.
At the time the articles first appeared, there were only seven paid subscribers of The Washington Post in the Ontario area. However, the articles were also posted on The Washington Post's website, where they had since appeared continuously.
Mr Bangoura commenced legal action for defamation against The Washington Post and various reporters and agents of The Washington Post in Ontario, based on the publication of the three articles in the newspaper and on its website.
In response, the defendants applied for the case to be stayed and an order setting aside service of the claim. The defendants' main arguments were that the Ontario Superior Court did not have jurisdiction because there was no real and substantial connection between the action and Ontario and that Ontario was not the most convenient forum for the action.
The Ontario Superior Court dismissed the defendants' application. On the issue of jurisdiction, the court found that, despite the fact that the defendants had no connection with Ontario, there was a real and substantial connection between the action and Ontario.
The decision was heavily influenced by the High Court's analysis in Gutnick, in particular that the location of the plaintiff is the key factor in determining whether a defamation action has a real and substantial connection with the jurisdiction. The place where the plaintiff resides is generally the place where the plaintiff will suffer the most damage to his or her reputation as a result of a defamatory statement. Thus, as the articles on The Washington Post website could be accessed in Ontario where Mr Bangoura resided and where damage to his reputation would have the greatest impact, the court concluded that the action had a real and substantial connection with Ontario.
In its judgment, the Ontario Superior Court echoed the statements of the High Court in Gutnick that, with the advantage of the Internet's reach of audience, comes responsibility. Particular thought needs to be given to the legal consequences of publication of material in the jurisdiction in which the subjects of articles live. Further, the court considered that, having regard to the international profile of The Washington Post, the defendants should have reasonably foreseen that the story would follow the plaintiff wherever he resided. That the plaintiff did not reside in Ontario when the articles were first published was of no consequence.
Implications
Both the Australian High Court and the Ontario Superior Court emphasised that defamatory material will only be actionable in a jurisdiction where it is published and damage is suffered to a person's reputation. As a person will generally suffer damage to reputation in the jurisdiction in which he or she resides, or has resided, publishers are likely to be able to identify those jurisdictions in which they may face potential liability before placing material online, by reference to the location of the subject person.
In Gutnick, Mr Gutnick had lived in Victoria for many years, and was living in Victoria at the time the defamatory material was first published. The circumstances of the Bangoura case were different. Despite the fact that Mr Bangoura was not living in Ontario when article was first published, and that Ontario had been his place of residence for only two years at the time of the hearing, the court decided that it had jurisdiction to hear the claim.
The Bangoura case indicates that publishers may be required to foresee that damage to a person's reputation could occur in a jurisdiction to which that person has relocated some time after the article was first made available on the Internet. Does this mean that publishers have to obtain legal advice in relation to every jurisdiction prior to publishing potentially defamatory material online because liability for defamation will follow the prospective plaintiff?
Perhaps a more practical response is that the Bangoura case indicates that media organisations need to monitor whether their online publications may be defamatory in jurisdictions where the subject person has relocated to, subsequent to the time that the material was first placed on the Internet.
For further information, please contact:
- Belinda ThompsonPartner,
Melbourne
Ph: +61 3 9613 8667
Belinda.Thompson@aar.com.au
- Simon McConnellManaging Partner - Hong Kong and China,
Hong Kong
Ph: +852 2840 1202
Simon.McConnell@aar.com.au
Ph: +61 3 9613 8667
Belinda.Thompson@aar.com.au
Ph: +852 2840 1202
Simon.McConnell@aar.com.au
