By: Mark Fitzgerald
In the United States, lawyers call it “forum shopping.” It’s the practice of finding a court that’s the softest touch. Trial lawyers like to file class action lawsuits, for instance, in Madison County in southern Illinois, where juries and judges have handed down judgments in the billions against asbestos manufacturers, tobacco companies, and other deep-pocketed industries.
The international equivalent is “libel tourism.” A favorite dodge of scoundrels who believe their good name has been sullied by the United States media is to file their libel suits in England or other nations where the rules are stacked against the press.
For decades, there was one problem with that strategy: The Podunk Herald Republican-Democrat from Main Street, U.S.A. doesn’t circulate in the nations friendliest to libel plaintiffs. How could someone’s reputation be ruined in England or Italy if no one there ever read the alleged defamation?
The Internet solved that problem. Since an alleged libel on a Web theoretically was accessible everywhere — news organizations could be sued from anywhere.
But last Friday, a Canadian appeals court declared that the Great White North, at least, will not be a resort for libel tourism.
The ruling came in a libel suit filed against The Washington Post and three of its reporters by Cheickh Bangoura, a former UN official. Bangoura worked in Kenya in 1997 when the Post published two articles about his conduct while he was with the United Nations in the Ivory Coast.
More than six years later, Bangoura, who was by then living in Canada, filed suit in Canada, arguing that the articles were still available on the Post’s Web site, and could be read on the Web by Canadians. Bangoura demanded C$5 million in damages for “intentional interference with prospective economic advantage,” another C$1 million for “intentional infliction of mental anguish,” a further C$1 million, plus C$1 million for the Post’s refusal to post retractions. On top of that, he asked for C$2 million in punitive damages.
The Post promptly filed to have the complaint dismissed on the grounds that it had no meaningful circulation in Canada.
Justice Romain W.M. Pitt of the Superior Court of Justice, however, rejected that motion, taking a position that alarmed U.S. newspapers — and international free-press groups.
“What the judge in the first round … said was, The Washington Post is a big newspaper, and it should expect to get sued,” Paul Schabas, an attorney who represented the Post, said in a telephone interview Thursday from the Toronto headquarters of Blake, Cassels and Graydon LLP.
As Paris-based Reporters Without Borders (RSF) noted, the tone of judge’s ruling was dismissive of the free-press issues involved.
Pitt said the Post “should have reasonably foreseen that the story would follow [Bangoura] wherever he resided.” A newspaper editor, he added, “does not put an article on the Internet if he does not wish to reach a large audience.”
“The more important the potential target, the more they [editors] should take care,” the judge wrote. RSF became one of 50 news organizations that filed the equivalent of amicus briefs with the appeals court.
In its Sept. 17 ruling, the three-judge panel of the Ontario Court of Appeal declared, in essence, that the lower-court judge had been wrong on the facts of the case — and the law.
Further, the court set a precedent that attorney Schabas believes will protect U.S. newspapers and media not only in Canada, but also in England and perhaps the rest of the European Union.
The ruling directly addresses the differences between U.S. and Canadian libel law — and says Canadian courts should respect the different approach that American defamation law takes.
In American courts, a public figure, under the New York Times v. Sullivan “actual malice” standard, must prove not only that a news organization defamed him falsely, but that it either knew the statement was false or published it in reckless disregard as to whether it was true or false.
As Schabas succinctly puts it, the standard in Canada is significantly different. “In Canada, we have essentially the same laws as England: A statement about somebody that is bad is presumed to be false, and a newspaper has to prove that it is true, whereas in the States, if someone is suing under the Sullivan rule and the First Amendment, the plaintiff has to prove it’s false,” he said.
“There’s no question Canadian laws are friendlier to plaintiffs than American libel law,” he added.
The appeals court also took into consideration the effect allowing virtually borderless libel law would have on Canadian papers as well. The court, Schabas said, asked, “would it be fair and reasonable to have Toronto newspapers hauled into court all over the world? And the answer is no.”
The appeals court ruling, which is available online, also demolishes the claim that Ontario was a reasonable place to try the Washington Post for libel.
It noted that the Washington Post on Sunday, January 5, 1997, when the first article appeared, had a reported circulation of 1,106,968. “Only 7 copies of the newspaper were delivered in Ontario,” the court noted dryly.
The appeals court also noted that while the two articles were also published on the Post’s Web site, and were available free of charge, after 14 days, users could access the articles only through a paid archive.
Since 1997, the court noted, exactly one person had paid for the articles: Bangoura’s lawyer.
The appeals court concluded there was simply no “real and substantial connection” between the libel claim and Ontario, and therefore Ontario courts could not claim jurisdiction.
“It’s a short but well-reasoned decision which I think will be respected by courts in other countries,” attorney Schabas said.
An occasional report on the working conditions for Latin American journalists:
The production area of the daily Di?rio de Mar?la in the Sao Paulo state was completely destroyed in a Sept. 8 arson attack that also wrecked the facilities of two radio stations also owned by the Central Mar?la Not?cias group, the New York City-based Committee to Protect Journalists (CPJ) reported. CPJ said the paper’s editor in chief, Jo? Urs?lio declined to speculate on who could be behind the attack, which was caught on a security camera. Four men and a woman overpowered a security guard and poured gasoline on the second and third floors of the offices. The paper published the next day, but with only half its normal press run.
At an official ceremony Aug. 30, Topocantins state Gov. Marcelo Mirando issued a warning to the brother of Sandra Mirando de Oliveira Silva, the owner and editorial writer of the weekly Primeira Pagina. Mirando said that if the law would not stop the paper, which has reported on corruption in the governor’s administration, from publishing news that “attacks” his family, “I will take steps of my own to do so.” The newspaper owner told RSF that unidentified people had set fire to her house on May 17.
A joint report by five international free-press associations — including CPJ; RSF; the Bogota-based Foundation for the Free Press (FLIP); Lima, Peru-based Institute for Press and Society (IPYS); and the International Federation of Journalists (IFJ) — concluded that two years of attacks on press freedom in the southeastern Valle del Cauca province has undermined the right to be informed. “Little news has appeared in the local media about the situation in [the province], even though armed groups are fiercely fighting each other there and the area is plagued by violence linked to drug trafficking,” the RSF said. Self-censorship is the norm among journalists, two of whom were murdered in 2004. Though the province is a hub of narcotics trafficking, the subject is “taboo” among the local media, the free-press groups concluded.
President Vicente Fox told a CPJ delegation Sept. 15 that he will ask Mexico’s attorney general to appoint a special prosecutor to investigate crimes against free expression. Four Mexican journalists have been killed in direct reprisal for their work in the last five years, according to CPJ, which is also investigating whether the murders of five other journalists were related to their work. “We have the same worries and the same commitment to work on this,” Fox told the delegation led by Paul Steiger, CPJ chairman and Wall Street Journal managing editor. Fox also promised to consider creation of a panel of national experts to evaluate how federal authorities can become more involved in fighting crimes against the press, CPJ said.
A taxi driver arrested in connection with the April 2004 murder of radio journalist Alberto Rivera Fernandez told the Lima daily El Comercio Sept. 14 that the assassination was ordered by the mayor of Pucallpa, Luis Valdez Villacorta. In a television interview the day before his murder, the journalist said if he were attacked, the person responsible would be Mayor Valdez.
Two juveniles, aged 14 and 16, were being held in connection with the Aug. 31 murder of Edgar Rengifo, director of the daily Diario Sol de Matur?n, the El Tiempo newspaper reported Sept. 13.