The question of where to bring an action for defamation can be
complicated in internet defamation cases. A publication made on a
computer in one jurisdiction may be read and republished by people
almost anywhere in the world. Similarly, while the publication may
have a stronger connection to one jurisdiction, the plaintiff's
reputation may suffer more harm in another jurisdiction. Where,
then, should the claim be commenced?
In Canada, a court may exercise jurisdiction only if it has a
"real and substantial connection" with the subject matter
of the litigation. If that is established, the court will proceed
to consider whether it should decline to exercise its jurisdiction
because there is a "clearly" more appropriate or
convenient jurisdiction in which the action can be brought.
These issues were recently considered by the Supreme Court of
Canada in the context of Conrad Black's defamation claims
against certain directors, advisors, and a Vice-President of
Hollinger International Inc. Black alleged that the defendants
published press releases and reports on Hollinger's website
that contained defamatory statements. The press releases were
published in Illinois but then downloaded and republished in
Ontario by three newspapers. Black brought six actions in Ontario
against a total of ten defendants, even though only one of those
defendants lived in Ontario, while nine of the parties, including
Black himself, were located in the United States.
The Supreme Court held that Ontario had jurisdiction because the
claim occurred in Ontario through republication of the press
releases by newspapers, which gave rise to a presumptive "real
and substantial connection" to Ontario, even though the
newspapers were not named as defendants in any of the six
The court then considered whether the Ontario courts should
decline to exercise jurisdiction over Black's case because
there was a "clearly" more appropriate forum for
Black's defamation actions. The Supreme Court set out a list of
factors to consider in this analysis, and concluded that a number
of them favoured another jurisdiction, Illinois, including the fact
that 9 of the 11 parties, as well as almost all of the witnesses,
lived in the United States, and the publication committed by the
defendants occurred in Illinois. The Supreme Court nevertheless
held that Illinois was not "clearly" more appropriate for
Black's defamation actions than Ontario because Black's
reputation was established in Ontario and allegedly suffered the
most harm there.
The Supreme Court's decision in Black will likely
cause Canadian courts to take a liberal approach to jurisdiction
over internet defamation claims. Defendants in defamation cases
will have to give careful consideration to whether a jurisdiction
challenge is worthwhile even where the connection to the Canadian
jurisdiction seems farfetched rather than "real and
substantial". However, the jurisdiction analysis is a
fact-specific one and there may be merit to a challenge in certain
cases where the tort claim did not occur in the jurisdiction and
the plaintiff's reputation does not stand to suffer as much
harm as in another jurisdiction.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).