Landmark Canadian Internet Libel Decision (Bangoura) Reversed By The Ontario Court Of Appeal

Javad Heydary

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On March 8, 2005, the Ontario Court of Appeal released its much anticipated Bangoura v. Washington Post decision.  The Court of Appeal reversed the lower court’s ruling that asserted jurisdiction over the Washington Post in a dispute over articles that were published online. 

The plaintiff, Cheickh Bangoura, filed suit in Ontario against the Washington Post and three of its reporters in respect of two articles (published in its newspaper and on its website), which he alleged were defamatory.  The articles were related to Mr. Bangoura’s conduct during his tenure with the United Nations in the Ivory Coast from September 1993 to December 1994.  The articles made specific reference to Mr. Bangoura, and alleged that his colleagues at the United Nations had accused him of sexual harassment, financial improprieties and nepotism during his posting in the Ivory Coast. At the time of publication, Mr. Bangoura was posted in Nairobi, Kenya, and was not an Ontario resident.   When the action was commenced in April of 2003, which was more than six years after the publication of the articles, Mr. Bangoura was a resident of Ontario.

The defendants brought a motion to stay the action and to set aside service of the statement of claim. They argued that the Ontario court did not have jurisdiction over them and claimed that there was no “real and substantial connection” between the action and Ontario or between the defendants and Ontario, and that Ontario was not the most convenient forum for the action.

A Real and Substantial Connection

Before a court can assume jurisdiction over a foreign defendant, it must be satisfied that a “real and substantial connection” exists. The following eight factors, as set out in Muscutt v. Courselles, have been identified as relevant to the determination of the jurisdictional issue:

1. the connection between the forum and the plaintiff’s claim;
2. the connection between the forum and the defendant;
3. any unfairness to the defendant in assuming jurisdiction;
4. any unfairness to the plaintiff in not assuming jurisdiction;
5. the involvement of other parties in the suit;
6. the court’s willingness to recognize and enforce a foreign judgment; rendered on the same jurisdictional basis;
7. whether the case is inter-provincial or international in nature; and
8. comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere.

The Lower Court Decision

The Motions court of the Ontario Superior Court of Justice held that it did have jurisdiction over the defendants because the articles were published online and were therefore accessible in Ontario. In determining whether there was a substantial connection, the court found that the damages to the plaintiff’s reputation had the greatest impact in Ontario, where he had established a home and also worked. The court further stated that although the defendants had no connection with Ontario, the Washington Post is a major newspaper and that many well-informed North Americans encounter the views expressed in the Post. As such, the defendants “should have reasonably foreseen that the story would follow the plaintiff wherever he resided”. Furthermore, the court recognized that the plaintiff had no connection with any of the jurisdictions in which the defendants resided. Since Washington is the residence of only one of the defendants, the plaintiff could have been faced with the same objections from the personal defendants if the action were commenced in Washington, where the defendant had no reputation to defend.

The key argument advanced by the Post was based on New York Times Co. v. Sullivan, where the court refused to enforce British libel judgments on the ground that British libel law is repugnant to the policies of the U.S.A. In response to this argument, the court cited the decision of Dow Jones & Company Inc. v. Gutnick, where an Australian court asserted jurisdiction over an American defendant on the basis that allegedly defamatory statements were published on the internet. The court was of the opinion that defamation is to be located at the place where the damage to the reputation occurs. In addition, it further noted that “those who post information on the World Wide Web do so knowing that the information they make available is available to all and sundry without any geographical restriction” and because they are aware of the global reach of their publications, they must consider the legal consequences in the jurisdiction of the subjects of their articles.

Convenient Forums Test

Despite the fact that the Motions court found that there was a “real and substantial connection” with Ontario, before the case could be heard in Ontario, it was still necessary to address the issue of whether Ontario was the most convenient forum. Among the factors the motion court considered in determining the appropriate forum for the trial of the action were:

1. the location of the majority of the parties;
2. the location of key witnesses and evidence;
3. avoidance of a multiplicity of proceedings;
4. the jurisdiction in which the factual matter arose;
5. the applicable law and its weight compared with the factual issues to be decided; and
6. loss of juridical advantage.

After a review of these factors, the court found that there would be problems whether the action was tried in Ontario or the District of Colombia, but that both were appropriate fora. Since no forum was clearly more appropriate than that chosen by the plaintiff, the court chose not to disturb the plaintiff’s choice.

Court of Appeal for Ontario

On appeal, the Court took a different view than that of the motions judge. The Court of Appeal stated that the connection between Ontario and Mr. Bangoura’s claim was minimal at best. They were of the opinion that there was no connection until more than three years after the publication of the articles in question. Furthermore, the court found no significant connection between the defendants and Ontario and rejected the notion that it was reasonably foreseeable that Mr. Bangoura would end up a resident of Ontario. In addition, it found that the fact that two of the personal defendants now live in New York and Florida did not favour Ontario as the appropriate forum. Lastly, the court discussed the reality that American courts will not enforce foreign libel judgments that are based on the application of legal principles that are contrary to the actual malice rule (the “rule”). The rule, adopted in New York Times v. Sullivan, which states that public officials can only succeed in a defamation claim where they can establish that “the defamatory statement was made with knowledge that it was false or with reckless disregard of whether it was false or not” has not been followed by the Supreme Court of Canada.

The issue before the Court of Appeal was whether the Ontario court should assume jurisdiction in the case solely based on the fact that the articles were available online.  In reversing the decision of the lower court, the court concluded that there was no “real and substantial connection” between the action and Ontario, and accordingly it was not appropriate for an Ontario court to assume jurisdiction.

The Aftermath

The Supreme Court of British Columbia has recently provided its reasons for judgment in a similar case, Burke v. NYP Holdings, Inc.  The case related to a column written by the defendant in the February 27, 2005 edition of the New York Post.  The column focused on the alleged activities of the plaintiff during an incident that occurred at a Vancouver hockey game between the Vancouver Canucks and the Colorado Avalanche, and also addressed the anticipated testimony of the plaintiff at trial in an action commenced in Colorado relating to the incident.  In addition to appearing in print, the column also appeared on a website maintained by the New York Post.  In response to the alleged defamation, the plaintiff commenced an action in Vancouver claiming damages to his reputation.

The Supreme Court of B.C. dismissed the defendants’ request that the pleadings be struck out on jurisdictional grounds.  The Court was satisfied that the Plaintiff had met the onus of establishing a “real and substantial connection” between British Columbia and the subject matter of the litigation based on the fact that the alleged defamatory comments were published online.  It is interesting to note that this case was decided on the same day as the Court of Appeal for Ontario reversed the lower court’s decision in Bangoura v. Washington Post which had asserted jurisdiction over the Washington Post based on an online publication of an allegedly defamatory article.  It will be interesting to see if either of these decisions will be appealed to higher courts.