On May 6, 2016, the Supreme Court of British Columbia handed
down its decision in Nazerali v. Mitchell, 2016 BCSC 810, ordering $1.2
million in damages in favour of the plaintiff, Natel Nazerali, who
claimed he was defamed by Mark Mitchell, the principal author and
publisher of www.deepcapture.com (the
This case highlights numerous interesting nuances about
defamation law when the Internet is involved; but notably, this
case appears to suggest that the Court will not hesitate to grant a
permanent injunction, even against big players like Google and
GoDaddy.com, for permitting online searches that lead to defamatory
content when the defendant publisher is foreign and likely to
resist enforcement of a monetary judgment against them.
This case arose in 2011, when Nazerali brought two libel actions
against Mitchell, claiming that he was defamed when the Mitchell
wrote an article entitled "The Miscreants' Global Bust
Out". This article contained 21 "chapters", five of
which referred to Nazerali, which were republished on 13 other
Internet sites. Nazerali argued that the article portrayed him as
"a criminal, arms dealer, drug dealer, terrorist, fraud
artist, gangster, mobster, member of the Mafia, dishonest,
dangerous and not to be trusted". Mitchell, on the other hand,
defended his publication, arguing that the purpose of these
writings were "to expose wrongdoing and unsavoury individuals
in the stock and financial markets".
In addition to Mitchell, Nazerali brought suit against Deep
Capture LLC, High Plains Investments LLC, and Patrick Byrne because
they own, operate, finance, and control the website, and Nozone,
Inc. for being the website's "hosting company".
Despite the long list of defendants, Nazerali succeeded in
recovering general, aggravated, punitive, and special damages from
Mitchell, Byrne, and Deep Capture LLC only.
Nazerali also sought permanent injunctive relief from all
defendants, as well as Google Inc. Google Canada Corporation,
"from permitting their search engines to publish any search
results from [the 'Website']", and GoDaddy.com Inc.,
who contracts the domain name. What makes this case particularly
interesting is the judge's decision to grant this rather
extraordinary relief, and his reasons for it. In his decision,
Justice Affleck noted that the primary defendants, Mitchell, Byrne,
and Deep Capture LLC, are American, all of whom pleaded that the
Website contains speech that is protected in the United States
pursuant to the SPEECH Act.
Justice Affleck began by holding that the defendants'
pleading is "irrelevant to liability in these actions".
More importantly, he interpreted this pleading to suggest that the
defendants would resist a monetary judgement against them in their
home country. "That factor and the apparent intention to
inflict as much damage on the plaintiff as possible" appeared
to persuade the judge that granting "a permanent injunction
restraining publication, dissemination or posting on the Internet
of any statements by them about the plaintiff" was
The judge's reasoning that where legislation exists to block
enforcement of (some) foreign libel judgments as evidence that the
defendants would resist the judgment appears to be consistent with
case law arising out of Ontario (see Barrick Gold Corp v Lopehandia (2004), 71 O.R. (3d) 416
(C.A.)) and Nova Scotia (see Trout Point Lodge Ltd v Handshoe, 2012 NSSC 245).
These cases, in addition to this one, suggest that Canadian courts
are willing to protect defamed plaintiffs by granting permanent
injunctive relief in their favour where a foreign defendant pleads
that they are protected from foreign defamation judgments by
legislation in their home country. In the eyes of the court, this
pleading insinuates that the defendants would not likely adhere to
a monetary judgment made against them in the Canadian court system.
Accordingly, granting this type of injunction that completely bans
access to the defamatory content would provide some relief to the
It remains to be seen whether or not courts in other provinces
will follow suit when faced with Internet defamation cases that
involve foreign defendants.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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