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Friday, September 24, 2004

Over 50 media companies are going to support the Washington Post's efforts to get an Ontario Superior Court of Justice internet defamation decision overturned.

The court, in Bangoura v The Washington Post, was guided by the Australian decision in the Gutnick case and said that the plaintiff was entitled to sue the Washington Post for defamation in Canada for articles published in the newspaper and on its website. They stretched the Gutnick guidance though. Mr Bangoura was not resident in Ontario when the articles were published, nor was he a Canadian citizen.

I can understand why the media companies are so concerned. There is an argument to be made that publication happens where the web material is downloaded, not just where it is produced. It is then a values debate as to whether one would agree with the argument or not. But the notion that you can sue for defamation in a jurisdiction of your choosing, where you are neither resident nor a citizen and in this case where there were only 7 subscribers to the website apparently none of whom downloaded the allegedly offending articles, seems to be stretching things to breaking point.

I have not seen the actual court decision, so there will no doubt be other mitigating factors which the judges took into account. Individuals are, after all, entitled to a form of redress through the courts when the victims of online defamation.

The appeal court is due to hear the case in November.

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