Conrad Black's ongoing legal fight in the United States has attracted considerable attention in Canada, yet there is a side courtroom battle at home over alleged defamatory content on the Internet that merits closer attention. The case, named Black v. Breeden, involves postings such as press releases and reports on the Hollinger International, Inc. website that Black claims were defamatory. Several Ontario media organizations published the allegations contained in those releases.

When Black sued the company's directors, advisers and one company employee for defamation, the defendants in the case brought a motion to dismiss on jurisdictional grounds, arguing that Ontario was not the appropriate venue for the case since both Hollinger and Black are located in the U.S. After a judge dismissed the motion, the defendants appealed to the Ontario Court of Appeal.

In a unanimous decision this month, the appellate court upheld the ruling by the motions judge, concluding that Ontario was a suitable venue and that the defamation case could proceed.

Targeting an audience?

Linkages between defamation and jurisdictional questions are not unusual, however, a novel issue before the court was how to treat content posted on the Internet that is accessible to a global audience. The starting point for jurisdictional analysis in Canada is the real and substantial connection test in which courts consider whether the connection is sufficient to merit asserting jurisdiction over the dispute.

In this case, the court was urged to base its analysis on a "targeting test" (the defendants relied in part on a law review article I wrote in 2001 advocating the adoption of a targeting-based analysis) that would involve considering whether the postings targeted the forum rather than looking at where they were downloaded and read.

The targeting test posits that courts should not assert jurisdiction over online content merely because it is accessible. Rather, there should be evidence that the site actively targeted an audience within the jurisdiction. The criteria for determining targeting remains elusive, but courts have referred to the language and content of the site, terms and conditions posted on the site, as well as awareness that the site's content may have an effect within the jurisdiction.

While the court concluded that it did not need to formally decide whether to adopt the targeting test, it was satisfied that the statements were in fact targeted at Ontario. It noted that the press releases posted on the Internet specifically provided contact information for Canadian media and that the company "clearly anticipated that the statements would be read by a Canadian audience and invited Canadian media to respond."

Can just downloading defame?

Interestingly, the defendants also raised an alternate argument, asking the court to establish a new exception to the real and substantial connection test for the Internet. They argued that downloading the offending content was effectively the "completion" of the defamation. Given the possibility of downloads in multiple jurisdictions, the defendants argued that many places could theoretically assert jurisdiction, leading to widespread legal uncertainty.

The court rejected the argument, concluding that judges were perfectly capable of sorting through the issues and ensuring fairness for both sides. In doing so, it allowed the Black defamation suit to proceed while also providing Internet users and the legal community with greater insight into when Canadian courts will assert jurisdiction over defamation that occurs online.