Canadian Court Asserts Jurisdiction over the Washington Post in an Internet Libel Action as Defamation Laws in the UK, USA and Australia are Applied to the World Wide Web

March 2004


The Ontario Superior Court of Justice will allow a plaintiff to pursue his claim arising from alleged defamatory statements published on the Internet by the defendant continuously since January 1997. 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 distribution of the statements was the Internet. 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, [2002] 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 (see Law Updates July 2003 and Harrods v Dow Jones).

In another Canadian case, Vaquero Energy v Weir, the Alberta Court of Queen’s Bench awarded the Plaintiffs general and punitive damages of $75,000 for defamatory statements posted by the Defendant on the Internet. The Plaintiffs, Vaquero Energy Ltd and its CEO, Robert Waldner, commenced an action against the Defendant, Nick Weir, alleging that Weir had anonymously posted disparaging remarks concerning the Plaintiffs on a stock market chat site over a period of four months. The Court was satisfied that the postings were defamatory and found the statements to be particularly malicious in the characterisation of Waldner. On the issue of damages, the Court emphasised that the anonymous nature of e-mails poses a greater risk that defamatory remarks are believed by readers because readers do not know the identity of the author or the author’s motive for sending the e-mail. As a result, the defamation becomes aggravated. The Court also considered the fact that Internet publication is global in reach and allows for instantaneous, unlimited re-publication and this could cause irreparable harm to a business reputation before its targets are even aware of the comments.

In the USA the Californian Court of Appeal has ruled that a public forum includes an internet bulletin board. In National Technical Systems v Schoneman, the Court made the finding in the context of an appeal from a trial decision concerning the posting of allegedly defamatory statements about a corporation and its President on an Internet bulletin board (as reported by Nicholas Wong and Colin Adams of Deeth Williams Wall LLP).
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