Black lawsuit not a case of libel tourism

For the London Free Press - October 4, 2010 Read this on Canoe

The case deals with defamation on the Net and how to decide where to sue for it

(NOTE: The title in the newspaper version was "Black lawsuit a case of libel tourism" - which is incorrect. )

Conrad Black has become a household name, thanks to his notorious legal wranglings. Black also is engaged in an Ontario-based legal proceeding that is equally as interesting as the U.S. legal circus.

The case deals with Internet defamation and how to determine where to sue for it. As with traditional defamation, a party alleging Internet defamation must demonstrate they suffered damages in Ontario and also that they have a significant connection to Ontario. Where Internet defamation differs from traditional defamation is that the alleged victim must prove the statements in question targeted Ontario.

In Black v Breedan, Black brought an action for libel against directors, advisers and a vice-president of Hollinger International for statements posted on the Hollinger website. Black argued his reputation was damaged in Ontario as a result of these defamatory statements that had been reproduced in a number of prominent Canadian newspapers, such as the Globe and Mail and the National Post.

The case became interesting from a legal standpoint when the defendants brought a motion to have the case dismissed, arguing Ontario courts did not have jurisdiction in the matter. The defendants claimed the action had no real and substantial connection to Ontario and, as a result, Ontario was not the convenient forum. That was based on the notion the matters that the alleged defamation referred to took place in the U.S.

The motions judge disagreed, finding Ontario to have the requisite connection to the action and thus to be the proper jurisdiction. The Court of Appeal agreed with this and in the process provided some enlightening comments on the jurisdictional challenge posed by Internet defamation.

Where defamation actually occurs - and thus where one can sue - has been the subject of much controversy over the years. The Internet has added a new dimension to this conundrum since statements can be published on websites available around the world.

However, there would be an innumerable amount of lawsuits if one were allowed to sue in every jurisdiction where the defamatory statement was read. To guard against this, Ontario courts will determine if the website targeted its statements so that they would be read in Ontario. In Black v Breedan the Court of Appeal decided there was sufficient evidence to prove the statements did target Ontario. The court based this decision, in part, on the fact that the Hollinger website provided contact information for Canadian media. The court held that this proved Hollinger expected the statements to be read by Canadians.

Black v Breedan is noteworthy because of the online aspect of the alleged defamation. Because anything posted on the Internet can be seen anywhere in the world, it has led to "libel tourism" - where someone who thinks they have been defamed will try to sue in whatever jurisdiction they might be most successful in, and get the highest damage award.

Black v Breedan tells us that - at least in Ontario - libel tourists are not welcome.