A defamation action in Ontario is causing a stir among media organisations worldwide. This is because the defendant is not a Canadian newspaper but The Washington Post, and the substance of the defamation action has little, if anything, to do with Ontario.
Nevertheless, a judge has allowed the action to proceed because the newspaper was circulated in hard copy in the province — albeit in a limited capacity — and also on the internet.
The case illustrates the difficulties newspapers that publish internationally face, with potential legal liability in many countries where the laws may be very different from those at home. Newspapers cannot practically obtain legal advice on every country in which they might be read.
Media organisations are worried about the chilling effect this incalculable liability will have on their reporting.
The plaintiff in this case, Cheickh Bangoura, was employed by the United Nations Drug Control Programme between 1987 and 1997. During this time he worked in Austria, Côte d’Ivoire and Kenya. In 1997 he moved to Canada with his family, where he has lived ever since.
In January 1997, while Bangoura was still living in Kenya, The Washington Post published three articles, which reported allegations from colleagues that he was guilty of sexual harassment, financial improprieties and nepotism. At the time, there was no wholesale distribution of the newspaper in Ontario or, indeed, anywhere in Canada. There was a grand total of just seven paid subscribers in the Ontario area.
The articles in question were made freely available on the internet for 14 days after they appeared in the newspaper. After that, they were accessible on the internet to subscribers only.
The Washington Post has actually determined that the only subscriber from Canada who accessed the articles in this way was Bangoura’s lawyer. Although Bangoura apparently knew about these articles from when they were first published, he chose not to sue over them until June 2003.
Not surprisingly, the newspaper applied to have the action struck out on the basis that the court in Ontario had no jurisdiction over it and that it was not the most convenient forum for the case to be heard. The paper argued that any action should take place in Washington DC, and certainly not in Canada.
One reason for this proposal was that United States law is considerably more favourable to media defendants than Canadian (or, indeed, United Kingdom) law. In particular, in a defamation action in the US, a newspaper can rely on what is known as a public-figure defence.
This gives the defendant a full defence if the allegation in question concerns a public figure, provided that the article was not published with malice. However, the judge refused the application, saying he did not consider that a court in Washington DC (or anywhere else, for that matter) would be significantly more appropriate for a hearing than the court in Ontario.
He noted that The Washington Post had no connection with Ontario but said that its writers “influence viewpoints throughout the English-speaking world” and added, somewhat sententiously, that he “would be surprised if it were not insured for damages for libel or defamation anywhere in the world, and if it is not, it should be”.
Bangoura’s case follows on from a decision of the Australian Supreme Court in 2002, when it allowed an action by businessman Joseph Gutnick against the US Dow Jones publishing company over an article in its Barron’s magazine concerning Gutnick.
In that case, the magazine in question was circulated mainly in the US but had a limited circulation in Victoria, Australia, where Gutnick lived. The article was also available on the Internet. The judge in the Bangoura action relied heavily on the Gutnick decision in his judgement.
But the Gutnick case was markedly different. There the plaintiff had lived in Victoria for many years including, importantly, the year the article complained of was published. In addition, the magazine had a much greater circulation in Australia than The Washington Post had in Ontario.
Also, the subject matter of the article, since it concerned Gutnick’s business dealings, had a considerable connection with Australia. By contrast, the connection of Bangoura’s action with Ontario was much more tenuous.
The decision of the Ontario judge, if allowed to stand, would set an extremely dangerous precedent for the media. It would mean that any newspaper that had even the most nominal international circulation (including, of course, the Internet), would face the daunting prospect of almost limitless liability in any country in the world for the material it published.
No newspaper could realistically obtain legal advice for every such jurisdiction. One of the benefits of reading a newspaper from a foreign country is that it provides an insight into the mores and attitudes of that country.
Readers know it is subject to the laws of that country and can read it with that understanding.
Therefore it seems quite unfair to impose liability from some foreign jurisdiction unless the newspaper has made some positive effort to circulate there.
The Washington Post is currently appealing the decision of the judge to the Ontario Court of Appeal.
Several news organisations from around the world, including The Guardian, are proposing to submit briefs supporting the defence. In order to avoid the chilling effect on news reporting that this decision is likely to engender, it is to be sincerely hoped that the appeal is successful. — Â