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| Feb. 16, 2004. 07:05 AM |  | Web decision extends long arm of Ontario law
MICHAEL GEIST
LAW BYTES
Few Internet law issues generate as much controversy as jurisdiction. While most now accept that traditional law applies online, the question of whose law should apply online remains subject to considerable debate. Since attempts to solve Internet jurisdiction issues through international treaties have thus far largely failed, individual courts have been left to grapple with the problem on their own.Internet jurisdiction watchers have recently noted that courts have been moving toward a "targeting" test to determine whether asserting jurisdiction is appropriate in particular circumstances. The targeting test examines whether the online conduct in question potentially defamatory postings or e-commerce transactions are targeted toward the locale being asked to assert jurisdiction.The test acknowledges that courts should not assert jurisdiction over a Web site merely because content on the site is accessible there. Rather, there should be evidence that the site actively targeted an audience within the jurisdiction. Although the criteria for determining targeting remains elusive, courts have referred to the language and content of the site, terms and conditions posted on the site, as well as awareness that the site's content may have an effect within the jurisdiction. The effects consideration is particularly important in the context of defamation actions, where courts will consider whether the person responsible for the libelous comment knew, or ought to have known, that the target of their posting or article resided in a particular place. This is based on the rationale that a person's reputation will suffer most where their reputation is greatest, which is typically where they reside.While dozens of cases involve a straightforward application of the targeting test, a few highly controversial cases have emerged. One such case involved Yahoo France, in which a French court asserted jurisdiction over the U.S.-based Internet giant and ordered it to ensure that neo-Nazi content, unlawful under French law, was blocked from French visitors to its site. Yahoo successfully challenged the French decision in the U.S. courts, as it obtained a ruling (currently under appeal) that the French decision was unenforceable under U.S. law.More recently, Dow Jones, the publisher of the Wall Street Journal and Barron's, found itself embroiled in a jurisdictional dispute in Australia. Joseph Gutnick, an Australian businessman, sued Dow Jones in a local court for defamation based on an article that appeared in Barron's. While the publication was scarcely available in print form in Australia, it was accessible through the Dow Jones Web site, a factor that weighed heavily in the Australian court's decision to assert jurisdiction over the matter. Like the Yahoo case, the Gutnick decision caused much hand-wringing in the U.S., with critics suggesting that the case would cause a publication chill as publishers refrain from posting certain content online for fear of liability in other jurisdictions.Notwithstanding the jurisdictional developments in the U.S., Europe and Australia, the Canadian courts' approach to Internet jurisdiction has remained somewhat of a mystery. While there have been several Canadian cases that have dealt with Internet jurisdiction issues, until recently we did not have our own Yahoo France or Gutnick-like case.That changed late last month when an Ontario judge issued a surprising jurisdictional decision that turned the targeting test into a moving target. The case involved Cheickh Bangoura, who was a United Nations official posted to various countries around the world throughout the 1980s and 1990s. Bangoura become a resident in Canada in 1996, received landed immigrant status in 1997, Canadian citizenship in 2001, and has lived in Ontario for the past two years. Bangoura was stationed in Kenya in 1997 as a leading official in a U.N. Drug Control Program when the Washington Post featured several articles accusing him of misconduct and mismanagement. While many years have passed since the articles first appeared, Bangoura recently sued the Washington Post for defamation in an Ontario court. Bangoura argued that the articles remain available on the Washington Post Web site and therefore accessible to residents in Ontario.In response, the newspaper sought to have the case stayed, arguing that the Ontario courts should not be entitled to assert jurisdiction over the matter since there was no real and substantial connection with the province.Late last month, an Ontario judge denied the Washington Post's motion, ruling that the paper "should have reasonably foreseen that the story would follow the plaintiff wherever he resided." The judge cited with approval the Australian Gutnick case, noting that the Australian High Court commented that "a publisher, particularly one carrying on the business of publishing, does not act to put matter on the Internet for it to reach a small target. It is its ubiquity which is one of the main attractions to users of it . . . . Publishers are not obliged to publish on the Internet. If the potential reach is uncontrollable then the greater the need to exercise care in publication."While the Ontario court was right to use foreseeability as the basis upon which it determined whether a publisher can be hauled into a foreign court, it seems unfair to expect the Washington Post to foresee that Bangoura, resident in Kenya at the time the article was first published, would years later reside in Ontario and sue in Ontario courts. Taken to its logical conclusion, the Ontario decision suggests that online publishers face potential liability in every jurisdiction, since foreseeability would be a fluid concept that literally moves with the prospective plaintiff.The targeting test developed as means of providing all Internet participants with a degree of certainty about their potential liability for online activities. The Ontario court has instead created a moving target test that will create the prospect for uncertainty among publishers worldwide as they fear that they too may be someday be hauled into an Ontario courtroom.
Michael Geist is the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa and technology counsel with the law firm Osler Hoskin & Harcourt LLP. He is online at http://www.michaelgeist.ca and http://www.osler.com (mgeist@uottawa.ca). The opinions expressed herein are personal and do not necessarily reflect those of the University of Ottawa or Osler, Hoskin & Harcourt LLP.Additional articles by Michael Geist
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