The Washington Post is to appeal the decision of The Ontario Superior Court of Justice to allow the plaintiff, Cheickh Bangoura, to pursue his claim arising from alleged defamatory statements published on the internet by the newspaper. The claims centered on Mr Bangoura’s behaviour in 1997 when he was based in Kenya and employed by the UN drugs control programme. The allegations centered on claims of sexual harassment, financial improprieties and nepotism. The primary issue in this case was whether the Court had jurisdiction over a foreign publisher of allegedly libellous statements concerning an international civil servant with residency status in Canada, where the medium of main distribution of the statements was the Internet. There were just seven paid subscribers to the Washington Post in Ontario area but the article featured in the Washington Post was freely available on the internet after 14 days. The Court found that the broad reach of the Internet and the renown of the newspaper itself were factors in demonstrating the multi-state nature of the action. Justice Pitt held that the defendant “should reasonably have foreseen that the story would follow the plaintiff wherever he resided.” The Court was also attracted by the reasoning of a recent Australian case, Dow Jones & Company Inc v Gutnick,  HCA 56, in which the High Court of Australia approved the assertion of jurisdiction where an American corporation published material online that was allegedly defamatory of Mr Gutnick, who was living in Australia. Most plaintiffs would rather bring a claim outside of the US where the law is more friendly to media defendants. Newspapers and the press have a constitutional right to free speech and the ‘public figure defence’ where a newspaper can rely on a doctrine which protects the publisher where a story is about a public figure provided no malice is shown.
See Dow Jones v Gutnick, Law Updates July 2003
See : The Guardian May 24th 2004 Media p10 “Anyone, In any country could read this article” by Dan Tench, Solicitor.
COMMENT : A number of jurisdictions (Canada, Australia, the United Kingdom) have adopted the position that publication on the internet is, in effect, global, leaving the publisher open to litigation in any territory where a defamation action could be brought. This clearly is an attractive proposition to those who feel that they have been libelled in as much as they can, to an extent, choose where they bring an action. However this is qualified by a judgement by the European Court of Justice (involving data protection) where it was held that the publication of personal data on a website in Sweden did NOT amount to amount to the transfer of data to a third party country.
Criminal Proceedings Against Lindqvist ECJ C101/01 Law Updates November 2003