20 September 2005

Internet Libel: Ontario Appeal Court refuses to follow Gutnick

One of the differences between the Commonwealth and American common law traditions was highlighted by the High Court of Australia's judgment in Dow Jones Inc v Gutnick [2002] HCA 56 (10 Dec 2002). In that appeal the Australian courts rejected an application by a US publisher against the lower court's refusal to stay a claim for libel by an Australian resident on the ground that any libel would have been published in the USA and not Australia. In Australia, as in most of the rest of the Commonwealth, a separate cause of action arises whenever and wherever a defamatory statement appears. In the USA, by contrast only one action is allowed and that is at the source of the publication. The defendant's print circulation in Australia was trivial but it had a website that was accessible anywhere in the world including Australia. The publisher argued that, as its circulation in Australia in every medium was negligible, the action should be stayed on grounds of forum non conveniens.

The High Court's rejection of that argument caused a lot of consternation at the time. Writing in The Times Roger Maynard and Francis Gibbs said that international media organizations with a strong internet presence were deeply concerned. They expressed the fear that anybody who objects to a website article would be tempted to sue in a country that had favourable defamation laws. David Rowan wrote in the same paper that a consensus was emerging that the case "could make the web a far tamer and less outspoken place". David Fickling and Stuart Miller wrote in The Guardian that media companies and internet campaigners had denounced the decision and feared that it would open the floodgates for a wave of libel actions from around the world. An
opinion article in The New York Times entitled "A Blow to Internet Freedom" compared the judgment to efforts by the Zimbabwe authorities in seeking to punish a writer for an article that the local police had downloaded from a London newspaper's website.


As I argued at the time in a case note on the old NIPC website, those arguments were overdone because they took no account of the rule in Henderson v Henderson (1843) 3 Hare 100 at 115 which had recently been reinforced by the House of Lords' decision in Johnson v. Gore Wood & Co. [2000] UKHL 65; [2001] 1 All ER 481; [2001] 2 WLR 72 (14 Dec, 2000). That rule was sufficient to prevent multiple actions arising out of substantially the same subject matter. As I had confidently expected, free speech on the internet did not come to an end and the excitement over the High Court's decision died down not to be awakened until now.

On 16 Sep 2005 the Ontario Court of Appeal allowed an appeal by the Washington Post against the refusal of the lower court to stay a claim by a Guinean citizen domiciled in Ontario in respect of a libel alleged to have been published in 1997 which was several years before the claimant took up residence in Ontario (Bangoura v Washington Post and others (2004), 235 DLR (4th) 564). One of the authorities upon which the judge below relied was the Australian High Court's judgment in Gutnick. Their lordships refused to follow that decision because they did not consider it to be helpful.

The Ontario Court gave no reason for not following Gutnick but there is nothing in their judgment to suggest that they had abandoned the Commonwealth multiple publication doctrine for the American single publication rule. The only ground for distinguishing Gutnick appears to have been one of scale. The publisher in Gutnick had 1,700 online subscribers in Victoria whereas only 7 copies of the offending newspaper had been distributed in Ontario. At paragraph [44] they noted:
"Gutnick was a well-known businessman who resided in Victoria at the time of the impugned publication. There was evidence that BarronÂ’s had some 1,700 Internet subscribers in Australia. Gutnick undertook that he would sue only in Victoria and only in respect of damages to his reputation in that state."

At paragraph [10] it was noted that there were only 7 subscribers in Ontario.

Out of fairness to the Court, it has to be emphasized that was not the only or even the main reason for its decision. Their lordships were bound by the Court's previous decision in Muscutt v. Courcelles, 2002 CanLII 44957 (ON C.A.) (2002-05-29) which set out the matters to be considered when determining whether to allow service of process outside the jurisdiction:
(i) the connection between the forum and the plaintiff’s claim;
(ii) the connection between the forum and the defendant;
(iii) unfairness to the defendant in assuming jurisdiction;
(iv) unfairness to the plaintiff in not assuming jurisdiction;
(v) the involvement of other parties to the suit;
(vi) the court’s willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis;
(vii) whether the case is interprovincial or international in nature; and
(viii) comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere.

Applying that doctrine, it is not hard to see how the Court reached its decision on the particular facts of that case.

In writing this post, I have to make clear that I am not chambers' expert on defamation. That honour belongs to my colleague Lois Cole-Wilson who will be glad to advise further on this and related issues.

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