The key to the case seems to be that postings on the internet, if targeted at Ontario residents, are generally actionable in Ontario even if posted outside the province. The Court holds:
[32] Black submits that a real and substantial connection is presumed to exist because the claim falls under r. 17.02(g). The motion judge, although not performing the analysis described in Van Breda, found that the alleged tort was committed in Ontario. I see no basis to interfere with this conclusion.
[33] The motion judge rejected the defendants' characterization of the claims as being about the governance of a U.S. company in accordance with U.S. law. He stated that, properly characterized, the claims were for defamation committed and damages sustained in Ontario. On the law of defamation, the motion judge explained at para. 35:
The case law is clear that the heart of a libel action is publication. The tort of defamation is committed where the publication takes place. Publication occurs when the words are heard, read or downloaded. The statements in question may well have been made in the U.S. by the directors or advisors of a U.S. company, but they were published or republished in Ontario and they are alleged to have caused injury in Ontario. The connection between the subject matter of the actions and Ontario is thus significant. [Footnotes omitted.]
[34] The defendants submit that the statements in question were all made in the United States, primarily in New York; although Black pleads republication in Ontario, the republication was not made by the defendants. They take the position that the alleged tort was not committed in Ontario and American libel law would apply.
[35] The defendants submit that treating the lex loci delicti as the place in which allegedly defamatory statements were accessed is inappropriate in the context of Internet libel. An approach that looks to where the statements were accessed, they argue, is contrary to the principles of order and fairness, leads to libel tourism and the prospect of unlimited liability and has a chilling effect on freedom of speech.
[36] The defendants advocate a different approach to a claim for libel originating on the Internet. They suggest that the focus of the analysis of where the tort of Internet libel is committed should be on whether the defendant targeted the statements to the forum rather than where they were downloaded and read.
[37] In support of the "targeting analysis" advocated, the defendants cite M. Geist, "Is There a There There? Toward Greater Certainty for Internet Jurisdiction" (2001), 16 Berkeley Tec. L.J. 1345, at 1380 and the case of Young v. New Haven Advocate, 315 F.3d 256, at 262-63 (4th Cir. 2002). In Young, the United States Court of Appeals for the 4th Circuit concluded that two Connecticut newspapers did not subject themselves to the jurisdiction of Virginia courts by posting on the Internet news articles that allegedly defamed the warden of a Virginia prison. The court explained at p. 263: "Something more than posting and accessibility is needed to 'indicate that the [newspapers] purposefully (albeit electronically) directed [their] activity in a substantial way to the forum state', Virginia. The newspapers must, through the Internet postings, manifest intent to target and focus on Virginia readers" (citations omitted).
[38] The defendants do not point to any Canadian authority for such a targeting approach. In Bangoura v. Washington Post (2005), 258 D.L.R. (4th) 341 (Ont. C.A.), at para. 48, leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 497, the interveners representing the Media Coalition proposed such an alternative approach to the issue of publication on the Internet and jurisdiction; however, the court did not find it necessary to determine the issue. Similarly, this issue need not be resolved on the facts of this case.
[39] I am satisfied on this record that there is evidence that the defendants did target and direct their statements to this jurisdiction. The press releases posted on the Internet specifically provide contact information for Canadian media, as well as U.S. and U.K. media. The press releases concluded with the heading "Contacts" for "US/Canada Media" followed by a name and contact information, as well as for "UK Media" with a different name and contact information. The contact information for Canadian media clearly anticipated that the statements would be read by a Canadian audience and invited Canadian media to respond.
these reasons, I conclude that the motion judge did not err in finding the alleged defamation was committed in Ontario.
[41] Alternatively, the defendants submit that in the context of the Internet, downloading was merely the 'completion' of the tort, suggesting that the tort could be committed in more than one jurisdiction. They suggest that where a tort can be committed in more than one jurisdiction, this court create an exception to the presumption of real and substantial connection. However, in my view, it is unnecessary to create a new exception in order to address principles of fairness and order or jurisdictional restraint.
[42] As a claim "in respect of a tort committed in Ontario", a connection described in r. 17.02(g), there is a presumption of a connection to Ontario for the purpose of establishing jurisdiction. This presumption is not conclusive; it remains open to the defendants rebut the presumption and to show that in these particular circumstances there is no real and substantial connection with Ontario.
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