In the recent case of Bangoura v. Washington Post, the Ontario Superior Court of Justice ruled that a plaintiff can bring an Internet libel action in Ontario even though the print version of the publication and the defendants' place of residence were both outside Ontario. The plaintiff, Cheickh Bangoura, was an international public servant for the U.N. and lived in a number of different countries. While Mr. Bangoura was stationed in Kenya, the Washington Post published three articles, in its newspaper and on its web site, claiming that he was under a series of investigations by the U.N. and accused of sexual harassment, financial improprieties and nepotism. Two separate U.N. inquiries later found these allegations to be baseless, and the U.N. was ordered to pay compensation. Mr. Bangoura initiated a lawsuit in Ontario, where he had been living for over two years at the time, against the newspaper and its reporters.
The defendants brought a motion to stay the action and to set aside service of the claim. They argued that the Ontario court did not have jurisdiction over them because there is no real and substantial connection between the action and Ontario or between the defendants and Ontario, and that Ontario is not the most convenient forum for the action.
The court dismissed the motion and held that it does have jurisdiction over the defendants since the articles were published online and therefore accessible in Ontario. In determining whether there is a substantial connection, the court found that the damages to the plaintiff's reputation would be greatest in Ontario, where he has established a home and where he also works. The court further stated that although the defendants have no connection to Ontario, very few well-informed North Americans do not encounter the views expressed in the Washington Post, especially with the Internet. The determining argument for the court was the similarity between this case and Dow Jones & Company v. Gutnick, which is an Australian decision where the court asserted jurisdiction over an American defendant, Dow Jones, based on the fact that the allegedly defamatory statements were published on the Internet. In Dow Jones, the court emphasised that those who publish material on the Internet are aware of the availability of the material in different jurisdictions and must consider the legal consequences.
In addressing whether Ontario is the most convenient forum for pursuing the action, the court held that there will be problems regardless of whether the action is tried in Ontario or the District of Columbia, where the head office of the Washington Post is located. In particular, the court noted the following: The publication took place in Washington, but the plaintiff's reputation was affected in Ontario. The applicable law is that of the lex loci delicti in tort cases; but, because this case involves defamation, it is difficult to determine where the tort occurred. If based on publication, then the District of Columbia is the choice of law; if based on damages and where reputation was affected, then Ontario is the choice of law. It is safe to say that Ontario and the District of Columbia are both appropriate fora.
The court then concluded that this issue could be resolved by the principle in Upper Lakes Shipping Ltd. v. Foster Yeoman Ltd., which states that the plaintiff's choice of forum should not be disturbed when no forum is clearly more appropriate.
Heydary, Javad
(416) 972-9001 Ext. 201
jheydary@heydary.com
