Libel Tourism, Targeting and the Lex Loci Protectionis (Vindicatio)

Omar Ha-Redeye at Law Is Cool, in an insightful post entitled: “Conrad Black and Libel Tourism“, cites a recent column by David Canton in the London Free Press, who writes,

“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, [sic] 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.

Black v Breedan [sic] 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 [sic] tells us that – at least in Ontario – libel tourists are not welcome.”

Ha-Redeye concludes:

“In assessing fairness, the court noted that even though there might be difficulties with enforcement of a judgment in the U.S., a favourable ruling would have some value in vindication for Black. But the court also tied this fairness element to the libel tourism issue raised by Canton,

[86]     I agree with the motion judge that it is not appropriate to label it forum shopping or libel tourism if the party has a real and substantial connection with the forum: see Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), 1993 CanLII 124 (S.C.C.), [1993] 1 S.C.R. 897, at p. 920. Further, even if the judgment is not enforceable in the United States, it is enforceable in Ontario, and there is also value in the vindication of a defamation judgment regardless of the ability to collect damages.

Although Ontario courts have resisted libel tourism in the past, Black v. Breedan [sic], also reaffirms the proposition that where a case meets the Van Breda factors this is not in fact a case of forum shopping.”

As I noted in a previous post, Ontario Court of Appeal allows Conrad Black’s defamation actions to proceed in Ontario:

“In my view, the Black v. Breeden case was correctly decided. However, the Van Breda test does not fit well with internet-based libel actions. The presumption of a real and substantial connection on the ground that the case falls within a connection specified in r. 17.02 is problematic. The default choice of law rule should not be the “lex loci delictii commissii” (the law of the place where the tort is committed) but rather, the lex loci protectionis (vindicatio)” (the law of the place where the protection is claimed or reputation vindicated).”

As many readers know, the Ontario Court of Appeal modified and reformulated the Muscutt test in Van Breda v. Village Resorts Limited (2010), 98 O.R. (3d) 721 (C.A.), leave to appeal to S.C.C. granted, [2010] S.C.C.A. No. 174 (see my previous posts here, here and here).

The Black v. Breeden decision exposes the fundamental flaw in the Van Breda test for assuming jurisdiction over non-resident defendants in internet libel actions.  As Omar Ha-Redeye (above) and Michael Geist have pointed out, the Court of Appeal did not expressly adopt the “targeting” approach, albeit the appeal panel does appear to rely in its reasons on the defendant’s Canadian press releases. As I observed in a previous Van Breda post:

“Frankly, I am somewhat surprised that the Supreme Court of Canada granted leave. If the issue is whether or not the objective is harmonization or uniformity, what the Van Breda lacks in either, it makes up in by judicializing the Court Jurisdiction and Proceedings Transfer Act (CJPTA). There have been no legislative updates since Professor Janet Walker, in association with the Law Commission of Ontario, released the Consultation Paper ” Codification of Judicial Jurisdiction in Ontario” (see my previous post here).  It would be preferable for the Ontario Liberal government to pass the CJPTA in its original form (as adopted by the Uniform Law Conference of Canada,) rather than modify the test for assumed jurisdiction. In any event, the most intriguing issue, in my view ,is whether the “forum of necessity” doctrine—which now forms part of the new Van Breda test—will pass judicial muster. Stay tuned.”

What the Van Breda test does is to essentially codify the CJPTA by creating a rebuttable presumption under Rule 17.02 of the Ontario Rules of Civil Procedure for asserting jurisdiction over non-resident, non-attorning defendants (except under 17.02(h)-damages sustained in Ontario and 17.02(o)-necessary or proper party).

However, the targeting approach is ostensibly the obverse of applying Rule 17.02(h) against the putative non-resident defendant. In other words, if the non-resident defendant targets the plaintiff with the defamatory postings in Ontario, then the plaintiff’s damages are presumed to be suffered in Ontario where the plaintiff resides.

This begs the question: why not assert jurisdiction in internet libel actions in the place where the plaintiff’s reputation is sought to be vindicated? My proposed “lex loci protectionis (vindicatio)” approach avoids libel tourism/forum shopping, since there is no rational basis for a plaintiff to sue in a jurisdiction where he or she is not known, has no presence, and, therefore, no real and substantial connection.

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