Canada: In Which Jurisdiction Should An Internet Defamation Claim Be Commenced?

The question of where to bring an action for defamation can be complicated in internet defamation cases. A publication made on a computer in one jurisdiction may be read and republished by people almost anywhere in the world. Similarly, while the publication may have a stronger connection to one jurisdiction, the plaintiff's reputation may suffer more harm in another jurisdiction. Where, then, should the claim be commenced?

In Canada, a court may exercise jurisdiction only if it has a "real and substantial connection" with the subject matter of the litigation. If that is established, the court will proceed to consider whether it should decline to exercise its jurisdiction because there is a "clearly" more appropriate or convenient jurisdiction in which the action can be brought.

These issues were recently considered by the Supreme Court of Canada in the context of Conrad Black's defamation claims against certain directors, advisors, and a Vice-President of Hollinger International Inc.[1] Black alleged that the defendants published press releases and reports on Hollinger's website that contained defamatory statements. The press releases were published in Illinois but then downloaded and republished in Ontario by three newspapers. Black brought six actions in Ontario against a total of ten defendants, even though only one of those defendants lived in Ontario, while nine of the parties, including Black himself, were located in the United States.

The Supreme Court held that Ontario had jurisdiction because the claim occurred in Ontario through republication of the press releases by newspapers, which gave rise to a presumptive "real and substantial connection" to Ontario, even though the newspapers were not named as defendants in any of the six actions.

The court then considered whether the Ontario courts should decline to exercise jurisdiction over Black's case because there was a "clearly" more appropriate forum for Black's defamation actions. The Supreme Court set out a list of factors to consider in this analysis, and concluded that a number of them favoured another jurisdiction, Illinois, including the fact that 9 of the 11 parties, as well as almost all of the witnesses, lived in the United States, and the publication committed by the defendants occurred in Illinois. The Supreme Court nevertheless held that Illinois was not "clearly" more appropriate for Black's defamation actions than Ontario because Black's reputation was established in Ontario and allegedly suffered the most harm there.

The Supreme Court's decision in Black will likely cause Canadian courts to take a liberal approach to jurisdiction over internet defamation claims. Defendants in defamation cases will have to give careful consideration to whether a jurisdiction challenge is worthwhile even where the connection to the Canadian jurisdiction seems farfetched rather than "real and substantial".  However, the jurisdiction analysis is a fact-specific one and there may be merit to a challenge in certain cases where the tort claim did not occur in the jurisdiction and the plaintiff's reputation does not stand to suffer as much harm as in another jurisdiction.