Ruling protects free speech on Net, lawyers say

[Fred Derf Veteran]

Sep. 16, 2005. 11:20 PM

Ruling protects free speech on Net, lawyers say

TRACEY TYLER

LEGAL AFFAIRS REPORTER

In a decision hailed as a victory for freedom of expression, an appeal court has thrown out a lawsuit brought by a former United Nations official trying to sue the Washington Post in Ontario over stories published three years before he moved to the province - and where the newspaper had just seven subscribers.

There is no "real and substantial connection" between the province of Ontario and Cheickh Bangoura's $10 million lawsuit against the Post and three of its reporters, the Ontario Court of Appeal said today in a 3-0 decision.

The lawsuit pitted Bangoura against the Post and a coalition of 50 media organizations from around the world.

Members of the coalition, which included the New York Times, CNN and major Canadian and European newspapers, were afraid that if the case were allowed to proceed in Ontario, they would be forced to block access to their websites and online databases, which, in turn, would dramatically shrink the scope of the Internet.

They feared that if Bangoura could sue in Ontario for stories published in Washington, D.C., they, too, could be sued for Internet stories read in countries far removed from their place of publication.

In one story, published on Jan. 5, 1997, the Post examined allegations that Bangoura was involved in sexual harassment, financial improprieties and nepotism while head of the U.N.'s drug program in East Africa. It also examined allegations he had been protected by ties to then secretary-general Boutros Boutros-Ghali.

A second story on Jan. 19, 1997 reported that Bangoura had been removed from his job.

At the time, the Post had only seven subscribers in Ontario and over 95 per cent of its newspapers were sold in Washington, D.C.

Bangoura moved to the Brampton area three years later. The Post's stories were available online for 14 days after publication. After that, they were available through a paid archive, but Bangoura's lawyer was the only person in Ontario to obtain them this way.

Last year, an Ontario Superior Court judge ruled that Bangoura's case could proceed to trial. The Post should have reasonably foreseen that the impact of its two Jan. 1997 stories about Bangoura, which were also published on the Internet, would have followed him wherever he resided, said Justice Romain Pitt.

But Justice Robert Armstrong, who wrote today's decision, disagreed.

"It was not reasonably foreseeable in January 1997 that Mr. Bangoura would end up as a resident of Ontario three years later," he said, writing on behalf of an appeal court panel that included Ontario Chief Justice Roy McMurtry and Justice Susan Lang.

"To hold otherwise would mean that a defendant could be sued almost anywhere in the world based upon where a plaintiff may decide to establish his or her residence long after the publication of the defamation."

Today's decision means that Ontario courts will not accept jurisdiction in a defamation lawsuit just because an article has been published on the Internet, said Ryder Gilliland, a Toronto media law lawyer who, along with Paul Schabas, represented the Post.

"It's a victory for freedom of expression for that reason," he said.

In another noteworthy development, the court also accepted that an Ontario libel judgment wouldn't be enforced south of the border, he said.

Gilliland and Schabas argued it was pointless to allow the case to proceed in Ontario because, even if Bangoura won, he wouldn't be able to collect any damages. No American court would enforce a libel judgment from Canada, where libel laws differ from those in the United States, they said.

In the U.S., there must be proof of actual malice in order for a defamation claim to succeed.

In his decision last year, Pitt said that spoke to an "unfortunate" lack of cooperation, but should not affect "Canadian values" or whether the case should proceed here.

Pitt didn't take into account that the American approach is rooted in constitutional guarantees of free speech, Armstrong said.

"In any event, the reality is that American courts will not enforce foreign libel judgments that are based on legal principles that are contrary to the actual malice rule," he said.

On behalf of the media coalition, lawyers Brian Rogers and Melissa Kluger suggested a number of factors the courts could consider in determining whether a story published on the Internet has a "real and substantial" connection to a particular jurisdiction.

Armstrong called the suggestions "helpful and interesting" but said it wasn't necessary to use them to decide the case. They may, however, be useful in future cases, he said.

http://www.thestar.com/NASApp/cs/ContentSe...id=968332188492