Library:
From Afghanistan to Zimbabwe; Discouraging Forum Shopping on the World Wide Web
Published in the July 2007 issue of Litigation Notes - View Article
The general assumption is that if an article is published “to the world” it is widely read and, if defamatory, can give rise to an award of damages to an aggrieved plaintiff. There is however a growing body of law from several jurisdictions to suggest that in the case of internet publications the assumption is rebuttable and if a plaintiff wants to sue in a particular jurisdiction he/she must be able to show the offending article was accessed by a significant number of readers in the jurisdiction where the suit is brought.
In an effort to discourage opportunistic forum shopping, the common law courts have increasingly looked to the number of readers of an article as an indicia of a real and substantial connection to the jurisdiction.
In Dow Jones & Co Inc. v. Gutnick,, the High Court of Australia in 2002 dealt with the issue of a well-known Australian businessman who brought an action against Dow Jones for the publication of an article in Barron’s Online that was available over the internet to some 1700 Australian subscribers.
The publisher argued that the action should have been brought in New Jersey, where the article was uploaded, citing the U.S. single publication rule. However, the High Court decided that Gutnick could sue in Australia where he suffered damages and rejected the publisher’s in terrorem argument that they would now be exposed to actions anywhere in the world due to the wide reach of the internet.
The Australian court was not convinced, as argued by Dow Jones, that allowing plaintiffs to sue where the reputation is damaged would require publishers on the world wide net to consider “…the laws of every country from Afghanistan to Zimbabwe”, noting that in all but the most unusual cases publishers could well anticipate the jurisdiction where the individual would suffer harm.
In 2005 the Ontario Court of Appeal decided the case of Bangoura v. The Washington Post. The complainant was a former U.N. worker who sued the Washington Post and three of its reporters for defamation in respect of two newspaper articles that related to his posting with the U.N. in the Ivory Coast. At the time of publication, there were only seven subscribers to the Washington Post in Ontario and Bangoura was not an Ontario resident. More than six years after the publication of the articles, Bangoura commenced the action in Ontario where he had subsequently become resident.
On appeal, the Court of Appeal overturned the decision of the lower court and held that it was not appropriate for the Ontario courts to assume jurisdiction. The Court noted that while the articles were available online, free of charge, for fourteen days following publication, after the fourteen days, they were only available through a paid archive. Only one person, counsel for Bangoura, had accessed the articles through the paid archive. Furthermore, Bangoura did not move to Ontario until more than three years after the publication of the articles. While the court recognized that summaries of the articles containing the gist of the allegations made against Bangoura, continued to be available free of charge from the Washington Post archive it held that the connection between Ontario and the Bangoura’s claim was minimal at best.
Predictably, the plaintiff in Bangoura tried to rely on the Gutnick case in support of his position. However, the Ontario Court of Appeal distinguished Gutnick, emphasising that the case involved a well-known Australian businessman who resided in the state of Victoria at the time of the publication, and there was evidence of some 1700 internet subscribers in Australia.
In 2005 a Saudi businessman brought a claim with respect to an article published on an internet website and its hyperlink which led to the alleged defamatory page. [Jameel v. Dow Jones Inc.], He argued that the article was available to between five and ten thousand subscribers within the English jurisdiction and invited the inference to be drawn that a “substantial number of readers” of the main article would have read the page to which the hyperlink led.
However, the wily defendant publishers adduced evidence that revealed that while there were 6,000 subscribers within the jurisdiction, only five subscribers in the jurisdiction had been able to access the article through the hyperlink. Of those five, three were members of the claimant’s “camp”.
The Court of Appeal struck out the claim, ruling that it would be an abuse of process to continue to commit the resources of the English court to an action “…where so little is now seen to be at stake.” In effect the court found the publication within the jurisdiction was minimal and did not amount to a real and substantial tort.
Following on Jameel, the High Court of Justice in England in Amoudi v. Brisard and JCB Consulting International found that the “presumption” that substantial publication of an article occurred where it was open to general access on an internet website was rebuttable.
The publisher adduced evidence that there were only a few “hits” from the UK. Furthermore, although the judge found that the evidence was inconclusive because there were many hits that were either not recorded or whose providence was unknown he held that the general rule is that the claimant bears the burden of proving that the words complained of were read by a third party. From that proposition, he reasoned that, in the case of internet libel, the claimant must prove that the material in question was accessed and downloaded.
As to how this might be done the judge suggested the claimant could establish a “platform of facts” from which the trier of fact could properly infer that a substantial publication within the jurisdiction has taken place, such as establishing the period of online availability of the article, and the accessibility of the article.
Despite the dire warnings of counsel for Dow Jones in Gutnick, it appears that the Canadian, U.K. and Australian courts are not inclined to automatically assume that a publication has been viewed by a “substantial” number of readers in their respective jurisdictions simply because the article is available on the world wide web.
What this means is that evidence must be adduced by the complainant to establish that enough readers within the jurisdiction were exposed to the defamation in order for the courts to assume jurisdiction. What constitutes a “substantial” number of readers is left up to the court, but seems to be informed by whether there is evidence of real damage to the reputation of the complainant within the jurisdiction.
From a practical perspective, it is interesting to note that common to the cases is the fact that the publications were generally limited to subscribers and therefore readership could be tracked.
It would be prudent for all publishers on the world wide web to take note and establish the already common practice of implementing a registration system that tracks readers who view articles online.
Furthermore, in order to avoid having to consider “…the laws of every country from Afghanistan to Zimbabwe” publishers and authors need to know where the targets of their articles are most likely to suffer injury to their reputations.
On the other side complainants should be ready to adduce evidence of the number of readers of the publication about which they complain.