Renvoi: Lex Situs Conflictus

Canadian Conflict of Laws Blawg by Seva Batkin

Crookes on Presumed Publication

Posted by Seva on May 29, 2008

In a several previous posts I discussed recent Canadian and U.S. cases dealing with cross-jurisdictional defamation suits (Canadian, US). In particular, a US court confirmed that mere accessibility of a statement via the Internet is not sufficient to assume jurisdiction absent proof of minimum connection to the state, such as proof of some kind of specific targeting of readers in the state. A single contact with the state (a single reader) was not sufficient.

In the light of that case, it is interesting to consider Crookes v. Yahoo, 2008 BCCA 165, where Lowry J.A. upheld dismissal of the defamation case against Yahoo! due to the plaintiff’s failure to plead publication in B.C. The case involved allegedly defamatory posts made on a private invitation-only Yahoo! message board. While acknowledging that publication must generally be pleaded, Mr. Crookes tried to rely on the “presumed publication” rule which applies to statements broadcast or transmitted to the general public (see Libel and Slander Act, s. 2). He relied on Wiebe v. Bouchard, where BCSC applied that rule to libellous statements posted on a Government of Canada website.

Acknowledging the presumed publication rule and Wiebe, Lowry J.A. distinguished them from “a website with the kind of restricted access there was in this case.” This restricted access did not support a presumption that the posts were read by anyone in B.C.

It’s difficult to argue with the court’s ultimate decision, particularly in the light of Mr. Crookes fame (see for example Wiki, Michael Geist, Slashdot). However, the case does leave open some important questions.

  1. What is the legal relationship, if any, between the presumed publication rule found in s. 2 of the Libel and Slander Act and the real and substantial connection required to establish jurisdiction simpliciter? Does this decision mean that the LSA, which deems a publicly broadcasted statement to be “published”, also deems the defamation tort to have been committed in B.C. within the meaning of s. 10(g) of the CJPTA? While the LSA does address some jurisdictional questions (s. 18 on “where an action must be tried”), it is difficult to fathom that the legislative intent behind s. 2 had anything to do with helping establish a court’s jurisdiction to try the matter in B.C.
  2. Even if it proven that a person has actually accessed the impugned post in B.C., is such singular access really sufficient to establish a real and substantial connection to B.C.? In particular, noting that s. 10 lists only presumptions of RaSC, could reasoning similar to that employed by the U.S. courts be also applicable here, requiring some kind of minimum targeting of the forum or proof of some regular or sustained access?

Perhaps next time!

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