On May 6, 2016, the Supreme Court of British Columbia handed down its decision in Nazerali v. Mitchell, 2016 BCSC 810, ordering $1.2 million in damages in favour of the plaintiff, Natel Nazerali, who claimed he was defamed by Mark Mitchell, the principal author and publisher of www.deepcapture.com (the "Website").
This case highlights numerous interesting nuances about defamation law when the Internet is involved; but notably, this case appears to suggest that the Court will not hesitate to grant a permanent injunction, even against big players like Google and GoDaddy.com, for permitting online searches that lead to defamatory content when the defendant publisher is foreign and likely to resist enforcement of a monetary judgment against them.
This case arose in 2011, when Nazerali brought two libel actions against Mitchell, claiming that he was defamed when the Mitchell wrote an article entitled "The Miscreants' Global Bust Out". This article contained 21 "chapters", five of which referred to Nazerali, which were republished on 13 other Internet sites. Nazerali argued that the article portrayed him as "a criminal, arms dealer, drug dealer, terrorist, fraud artist, gangster, mobster, member of the Mafia, dishonest, dangerous and not to be trusted". Mitchell, on the other hand, defended his publication, arguing that the purpose of these writings were "to expose wrongdoing and unsavoury individuals in the stock and financial markets".
In addition to Mitchell, Nazerali brought suit against Deep Capture LLC, High Plains Investments LLC, and Patrick Byrne because they own, operate, finance, and control the website, and Nozone, Inc. for being the website's "hosting company". Despite the long list of defendants, Nazerali succeeded in recovering general, aggravated, punitive, and special damages from Mitchell, Byrne, and Deep Capture LLC only.
Nazerali also sought permanent injunctive relief from all defendants, as well as Google Inc. Google Canada Corporation, "from permitting their search engines to publish any search results from [the 'Website']", and GoDaddy.com Inc., who contracts the domain name. What makes this case particularly interesting is the judge's decision to grant this rather extraordinary relief, and his reasons for it. In his decision, Justice Affleck noted that the primary defendants, Mitchell, Byrne, and Deep Capture LLC, are American, all of whom pleaded that the Website contains speech that is protected in the United States pursuant to the SPEECH Act.
Justice Affleck began by holding that the defendants' pleading is "irrelevant to liability in these actions". More importantly, he interpreted this pleading to suggest that the defendants would resist a monetary judgement against them in their home country. "That factor and the apparent intention to inflict as much damage on the plaintiff as possible" appeared to persuade the judge that granting "a permanent injunction restraining publication, dissemination or posting on the Internet of any statements by them about the plaintiff" was appropriate.
The judge's reasoning that where legislation exists to block enforcement of (some) foreign libel judgments as evidence that the defendants would resist the judgment appears to be consistent with case law arising out of Ontario (see Barrick Gold Corp v Lopehandia (2004), 71 O.R. (3d) 416 (C.A.)) and Nova Scotia (see Trout Point Lodge Ltd v Handshoe, 2012 NSSC 245). These cases, in addition to this one, suggest that Canadian courts are willing to protect defamed plaintiffs by granting permanent injunctive relief in their favour where a foreign defendant pleads that they are protected from foreign defamation judgments by legislation in their home country. In the eyes of the court, this pleading insinuates that the defendants would not likely adhere to a monetary judgment made against them in the Canadian court system. Accordingly, granting this type of injunction that completely bans access to the defamatory content would provide some relief to the defamed plaintiff.
It remains to be seen whether or not courts in other provinces will follow suit when faced with Internet defamation cases that involve foreign defendants.
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