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2003 December 09
Barrick Gold Corporation v Blanchard & Co, [2003] O.J. No. 5817 (SCJ)

Nature of Internet Publication:  Website posting

Other forms of expression also involved?  Yes, hard copy

Canadian court has jurisdiction?  Yes

Canadian court should decline jurisdiction?  No

The Ontario Superior Court held that it had jurisdiction over claims relating to allegedly defamatory statements made by the defendants that were allegedly published or disseminated in Ontario and other parts of Canada on the Internet and by press releases, written notices and a telephone hotline, and certain re-publication.  Ontario was also an appropriate jurisdiction to hear those claims.

This action concerns allegedly defamatory statements made by the defendants that were allegedly published or disseminated in Ontario and other parts of Canada on the Internet and by press releases, written notices and a telephone hotline, and certain re-publication.

The Ontario Court of Justice noted that some of the statements complained of were published on websites owned and maintained by the defendant company.  The websites were hosted by a company resident in Louisiana.  The servers hosting those websites were also located in Louisiana.  Both websites are maintained and designed by another company resident in Louisiana.  “At no time were the websites hosted on any servers in Ontario … or elsewhere in Canada.”

The defendants asserted that the websites were “passive” in nature in Ontario.  Although they contain information that can be viewed by the reader, the reader cannot interact with the websites, beyond requesting information.

In its analysis of the facts, the Court noted that the “websites are accessible in Ontario and…the damage to reputation only occurs when the offending material is downloaded from the website onto a computer in Ontario and then read by a person in Ontario.” 

The Court described the Internet jurisdiction issue as follows:

…This issue is one that has received attention in recent years and differing conclusions have been reached. The debate is centred on the reality that material on the Internet is accessible throughout the world regardless of where it is originally posted. One who posts material on the Internet is then at risk of being sued throughout the world. On the one hand, it is argued that to permit individuals who post material on the Internet to be sued anywhere in the world exposes them to extensive risk and liability and, as a consequence, there may be a chilling effect on the use of what is viewed as being a very important mode of expression and communication. On the other hand, it is argued that if individuals who post material on the Internet can only be sued in the jurisdiction where the material was posted, it might encourage people to make unfair and unwarranted allegations against others with the comfort of knowing that either no one will wish to incur the expense of having to travel a great distance to litigate the issue or that the persons posting the material may chose a safe haven in terms of that jurisdiction's libel laws that would make it difficult, if not impossible, for the injured party to successfully litigate the claim.

The Ontario Superior Court went on to consider a number of decisions of U.S. courts including Copperfield v. Cogedipresse 26 Med. L. Rptr. 1185 (1997) (C.D.Cal.).

The Ontario Superior Court stated, however, that it preferred the reasoning in Dow Jones & Co. Inc. v Gutnick  [2002] HCA 56 for two reasons:

o       While exposing people who post material on the Internet to a wide expanse of liability, it establishes a rule that would have as its effect a strong incentive for people who do post such material to ensure that it is fair and accurate and responsible in its content.  “The U.S. approach, on the other hand, has the very real risk of becoming a licence for people to post whatever outrageous and malicious material they wish without any real fear of being called to account.

o       The Dow Jones approach does not have to be applied rigidly.  The Court would still consider the degree of connection to the jurisdiction and the intent of the person posting the material to the degree that intention can be discerned.  “For example, if the plaintiff’s reputation was only tangentially affected in his or her home jurisdiction but it was apparent that the real issue, and the significant impact, was more clearly connected to the jurisdiction where the defamatory material was posted, then the injured person’s home court might decline jurisdiction and direct the plaintiff to litigate in the other jurisdiction.  Similarly, if a court was satisfied that the person who posted the material had no intention to harm, nor could they have reasonably anticipated that a person in the foreign jurisdiction would be harmed by such material, then again the foreign court might well decline to exercise jurisdiction over the claim.

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