The Canadian Gutnick - Internet Jurisdiction's Moving Target

[Dave Farber <dave () farber net>]

Delivered-To: dfarber+ () ux13 sp cs cmu edu
Date: Mon, 16 Feb 2004 07:49:03 -0500
From: Michael Geist <mgeist () pobox com>
Subject: The Canadian Gutnick - Internet Jurisdiction's Moving Target
X-Sender: mgeist () mailbox uottawa ca
To: dave () farber net

Dave,

Of possible interest -- an Ontario court recently asserted jurisdiction 
over the Washington Post for an allegedly defamatory article published back 
in 1997.  The case surprisingly hasn't received much attention despite the 
fact that is much like the Australian Gutnick case in which the Australian 
court asserted jurisdiction over Dow Jones but with a twist.  The plaintiff 
was living in Kenya at the time of the article.  Having moved to Canada, he 
now sues in Ontario and the judge responds that the paper "should have 
reasonably foreseen that the story would follow the plaintiff wherever he 
resided" giving a whole new meaning to the concept of a moving target.

Decision is at http://www.canlii.org/on/cas/onsc/2004/2004onsc10181.html.

Column, posted below, is online at
<http://www.shorl.com/fidygrejosoja> [Toronto Star]

MG

Web decision extends long arm of Ontario law

MICHAEL GEIST
LAW BYTES

Few Internet law issues generate as much controversy as jurisdiction. While 
most now accept that traditional law applies online, the question of whose 
law should apply online remains subject to considerable debate. Since 
attempts to solve Internet jurisdiction issues through international 
treaties have thus far largely failed, individual courts have been left to 
grapple with the problem on their own.

Internet jurisdiction watchers have recently noted that courts have been 
moving toward a "targeting" test to determine whether asserting 
jurisdiction is appropriate in particular circumstances. The targeting test 
examines whether the online conduct in question - potentially defamatory 
postings or e-commerce transactions - are targeted toward the locale being 
asked to assert jurisdiction.

The test acknowledges that courts should not assert jurisdiction over a Web 
site merely because content on the site is accessible there. Rather, there 
should be evidence that the site actively targeted an audience within the 
jurisdiction. Although the criteria for determining targeting remains 
elusive, courts have referred to the language and content of the site, 
terms and conditions posted on the site, as well as awareness that the 
site's content may have an effect within the jurisdiction.

The effects consideration is particularly important in the context of 
defamation actions, where courts will consider whether the person 
responsible for the libelous comment knew, or ought to have known, that the 
target of their posting or article resided in a particular place. This is 
based on the rationale that a person's reputation will suffer most where 
their reputation is greatest, which is typically where they reside.

While dozens of cases involve a straightforward application of the 
targeting test, a few highly controversial cases have emerged. One such 
case involved Yahoo France, in which a French court asserted jurisdiction 
over the U.S.-based Internet giant and ordered it to ensure that neo-Nazi 
content, unlawful under French law, was blocked from French visitors to its 
site. Yahoo successfully challenged the French decision in the U.S. courts, 
as it obtained a ruling (currently under appeal) that the French decision 
was unenforceable under U.S. law.

More recently, Dow Jones, the publisher of the Wall Street Journal and 
Barron's, found itself embroiled in a jurisdictional dispute in Australia. 
Joseph Gutnick, an Australian businessman, sued Dow Jones in a local court 
for defamation based on an article that appeared in Barron's. While the 
publication was scarcely available in print form in Australia, it was 
accessible through the Dow Jones Web site, a factor that weighed heavily in 
the Australian court's decision to assert jurisdiction over the matter.

Like the Yahoo case, the Gutnick decision caused much hand-wringing in the 
U.S., with critics suggesting that the case would cause a publication chill 
as publishers refrain from posting certain content online for fear of 
liability in other jurisdictions.

Notwithstanding the jurisdictional developments in the U.S., Europe and 
Australia, the Canadian courts' approach to Internet jurisdiction has 
remained somewhat of a mystery. While there have been several Canadian 
cases that have dealt with Internet jurisdiction issues, until recently we 
did not have our own Yahoo France or Gutnick-like case.

That changed late last month when an Ontario judge issued a surprising 
jurisdictional decision that turned the targeting test into a moving 
target. The case involved Cheickh Bangoura, who was a United Nations 
official posted to various countries around the world throughout the 1980s 
and 1990s. Bangoura become a resident in Canada in 1996, received landed 
immigrant status in 1997, Canadian citizenship in 2001, and has lived in 
Ontario for the past two years.

Bangoura was stationed in Kenya in 1997 as a leading official in a U.N. 
Drug Control Program when the Washington Post featured several articles 
accusing him of misconduct and mismanagement. While many years have passed 
since the articles first appeared, Bangoura recently sued the Washington 
Post for defamation in an Ontario court. Bangoura argued that the articles 
remain available on the Washington Post Web site and therefore accessible 
to residents in Ontario.

In response, the newspaper sought to have the case stayed, arguing that the 
Ontario courts should not be entitled to assert jurisdiction over the 
matter since there was no real and substantial connection with the province.

Late last month, an Ontario judge denied the Washington Post's motion, 
ruling that the paper "should have reasonably foreseen that the story would 
follow the plaintiff wherever he resided."

The judge cited with approval the Australian Gutnick case, noting that the 
Australian High Court commented that "a publisher, particularly one 
carrying on the business of publishing, does not act to put matter on the 
Internet for it to reach a small target. It is its ubiquity which is one of 
the main attractions to users of it . . . . Publishers are not obliged to 
publish on the Internet. If the potential reach is uncontrollable then the 
greater the need to exercise care in publication."

While the Ontario court was right to use foreseeability as the basis upon 
which it determined whether a publisher can be hauled into a foreign court, 
it seems unfair to expect the Washington Post to foresee that Bangoura, 
resident in Kenya at the time the article was first published, would years 
later reside in Ontario and sue in Ontario courts. Taken to its logical 
conclusion, the Ontario decision suggests that online publishers face 
potential liability in every jurisdiction, since foreseeability would be a 
fluid concept that literally moves with the prospective plaintiff.

The targeting test developed as means of providing all Internet 
participants with a degree of certainty about their potential liability for 
online activities. The Ontario court has instead created a moving target 
test that will create the prospect for uncertainty among publishers 
worldwide as they fear that they too may be someday be hauled into an 
Ontario courtroom.
Michael Geist is the Canada Research Chair in Internet and E-commerce Law 
at the University of Ottawa and technology counsel with the law firm Osler 
Hoskin & Harcourt LLP. He is online at http://www.michaelgeist.ca and 
http://www.osler.com (mgeist () uottawa ca). The opinions expressed herein are 
personal and do not necessarily reflect those of the University of Ottawa 
or Osler, Hoskin & Harcourt LLP.



**********************************************************************
Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa Law School, Common Law Section
Technology Counsel, Osler, Hoskin & Harcourt LLP
57 Louis Pasteur St., P.O. Box 450, Stn. A, Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319     Fax: 613-562-5124
mgeist () pobox com              http://www.michaelgeist.ca

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