Skip to comments.Libel case chills world's papers
Posted on 03/08/2005 6:59:35 AM PST by Pikamax
Libel case chills world's papers Ontario lawsuit cites access to website Media group supports Washington Post
TRACEY TYLER LEGAL AFFAIRS REPORTER
For many, reading newspapers over the Internet has become part of the daily routine. But that could change as a result of an Ontario libel case being watched closely by media organizations around the world.
At worst, the media fear the case, which goes to court in Toronto today, could force them to block access to their websites and electronic databases from some countries, shrinking the Internet's global reach. Some news organizations, they say, may have to shut down their websites altogether.
"The information accessible to citizens of the world would be diminished, and the value of the Internet as a global source of information substantially denied," a 50-member coalition of some of the world's leading news organizations says in a written brief filed with the Ontario Court of Appeal.
The case, Bangoura v. Washington Post, raises "key issues for the future of global freedom of expression," says the coalition, which counts The New York Times, several other U.S. news organizations including Time Inc., Dow Jones and Co., the Hearst Corporation and CNN and major newspapers in Canada, Britain, Australia and Japan among its members.
The coalition is supporting the Washington Post in its battle with Cheickh Bangoura, a former United Nations employee who was the subject of two stories in the newspaper in January 1997.
The stories examined allegations of sexual harassment, financial improprieties and nepotism by Bangoura while he was an officer of the U.N.'s drug control program in West Africa, as well as allegations that his ties to former U.N. Secretary-General Boutros Boutros-Ghali were the reason he was not disciplined.
Later that month, Bangoura was fired by the U.N. and moved his family to Quebec, eventually settling in Ontario in June 2000. In court documents, he says he was cleared of wrongdoing before the reports were published and the stories have made it difficult for him to get a job. The only one he's found was a brief stint as a settlement worker for newcomers to Canada, he said. More than six years after the stories were published, Bangoura filed a lawsuit against the Post and three of its reporters in Ontario's Superior Court of Justice, claiming $9 million in damages.
Relying on a long list of legal precedents, the Post's lawyers brought a motion to have the lawsuit dismissed on the grounds the case had no "real or substantial connection" to Ontario. Bangoura had little or no reputation in Ontario because he did not live here when the stories were published and the reporters who worked on the story were based in the U.S., Kenya and Ivory Coast.
If Bangoura's lawsuit were allowed to proceed simply because the stories had been accessible in Ontario through the Internet, it would mean that publishers worldwide would face the prospect of being dragged into other countries' courts for libel, no matter how remote their connection to the country might be, the Post argued. That would encourage "forum shopping" by libel plaintiffs and have a devastating impact on freedom of expression, the newspaper argued.
Its lawyers, however, were not able to persuade Superior Court Justice Romain Pitt, who called the Post a major international newspaper "spoken of in the same breath as The New York Times and London Telgraph," whose writers influence viewpoints throughout the English-speaking world. The Post should have foreseen fallout from the stories would have followed Bangoura wherever he lived, Pitt said in a decision last year, allowing the lawsuit to proceed to trial. The Post appealed.
Pitt's reasoning is "flawed" and unsupported by the evidence, the newspaper's lawyers, Paul Schabas and Ryder Gilliland, say in documents filed in the appeal court.
At the time the stories were published, the Post had only seven paid subscribers in the province. The stories were available on the paper's website for 14 days, but after that could be obtained only by accessing a database for a fee. The only person to pay the fee and obtain the stories, they say, was Bangoura's lawyer, Charles Roach.
A more logical place to bring the lawsuit is Washington, D.C., where 95 per cent of the newspaper's copies are sold, or New York, where the U.N. is based, Schabas and Gilliland contend. There is also no advantage for Bangoura to sue in Ontario because U.S. courts are unwilling to enforce judgments from jurisdictions where libel laws differ so radically from their own.
While Pitt said Bangoura is seeking "vindication," not money, he has nevertheless claimed $9 million, the Post says.
In documents filed with the appeal court, Bangoura says he is not suing for libel, but for "intentional interference" with economic advantage and infliction of mental anguish as a result of the stories. Whatever he calls it, that's a libel lawsuit disguised by other language, Schabas and Gilliland say.
Roger McConchie, a Vancouver lawyer and expert in defamation law, said one of the "troubling features" of Internet libel cases is that there is often "very little evidence" the publication has been widely read, or read at all, in the jurisdiction where a lawsuit has been filed.
"I've been waiting, actually, for a long time for this issue to come to a head in Canada," he said in an interview yesterday. In some cases, McConchie said, Canadian courts have decided a libel case has a "real and substantial" connection to a province simply because one or two people have seen a foreign newspaper's story on a website a development, he said, that's left him "baffled."
For instance, in 1998, the Ontario Court, General Division, as it was then called, allowed a Ugandan-born man living in Ontario to use the province's courts to sue the Ugandan daily newspaper New Vision over a story that he claimed defamed him. The newspaper's website was accessed by two people in Ontario, but they did not access the page on which the story appeared.
In Australia, in a decision known as the Gutnick case, courts allowed a man to bring a libel lawsuit in the state of Victoria against Dow Jones for a story published in its magazine Barron's, which was uploaded onto the Internet in New Jersey.
But slowly, courts seem to be changing their approach, McConchie said. A ruling from the English Court of Appeal just last month comes as a "happy bolt out of the blue" for the Post and coalition members, he said. The court threw out a libel lawsuit brought by Yousef Jameel, who sued Dow Jones over a story available on a subscriber site available in the United Kingdom, about a group of rich Saudis who may have been approached by Osama bin Laden for money and included a link to their list of names.
The court dismissed the suit after learning the list had been accessed by only five people, three of whom were Jameel's agents or associates.
The Post should find one of those auto lawsuit law firms which specializes in finding the quirkiest most malleable juries in the US.
I absolutely support and defend the Washington Post in this fight.
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