Content Regulation / Censorship, Defamation / Reputation, Political Expression
The Case of Sarawak Report and Malaysia Insider
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An Ontario-based corporation brought a defamation action in Ontario against a Quebec-based publisher for statements made by the publisher in a book concerning the corporation’s actions in the Democratic Republic of Congo. The publisher filed a motion to dismiss, claiming that there was no substantial nexus between the Ontario court where the action was filed and the tort alleged. The Supreme Court of Canada unanimously held that there was indeed a substantial connection between the offense alleged and the forum, and accordingly, dismissed the defendant’s appeal.
The plaintiff/respondent, Banro, is an Ontario-based corporation that engages in mining activities around the world, including the Democratic Republic of Congo (“DRC”). Banro also investigates and develops potential gold properties in the DRC.
The defendant/appellant, Éditions Écosociété Inc., is a Quebec-based publisher that published a book concerning Banro’s actions in the DRC, entitled Noir Canada: Pillage, corruption et criminalité en Afrique (English: “Black Canada: Pillaging, corruption, and crime in Africa”).
In Noir Canada, Éditions Écosociété accused Banro of committing fraud and various human rights violations in Africa in order to further its financial interests. At the time the lawsuit reached the Supreme Court, the book was in its second French edition and was available for purchase in bookstores and on the publisher’s website. It was also available in several Ontario libraries.
Banro filed suit in Ontario, claiming that the allegations published in Noir Canada were libelous. Éditions Écosociété filed a motion to dismiss, claiming that the court did not have jurisdiction to hear the case because there was not a substantial nexus between the Ontario court and the action alleged. The trial judge dismissed Éditions Écosociété’s motion. Éditions Écosociété appealed. The appellate judge agreed with the lower court. Éditions Écosociété then appealed to the Supreme Court of Canada.
The Court relied on the “real and substantial connection test” set out in Club Resorts Ltd. v. Van Breda to determine whether the plaintiff’s defamation claim bore a sufficient nexus to the chosen forum. Namely, the Ontario Court.
The Court expressed concern that allowing the suit to progress in Ontario would open the door to “libel tourism”, especially because it would appear that, if a defamatory publication is available in a given province, a tort claim could then be brought in that province regardless of the defamatory material’s origin.
Nevertheless, because the moving party bears the burden of proof in a motion to dismiss for lack of jurisdiction, the Court noted that Éditions Écosociété had failed to demonstrate the only a minor amount of defamation took place in the venue forum of Ontario. As per the standard set out in Club Resorts, if a substantial amount (that is, not “only a minor amount”) of defamation takes place in the venue state, the defamation claim can be filed in that state.
As to the defendant’s forum non-convenience claim, the Court noted that the Ontario court had jurisdiction over the claim despite inconvenience to the defendant because Ontario was the state in which “the most substantial harm to reputation” occurred.
For the foregoing reasons, the Supreme Court found that the Ontario court had jurisdiction to decide the case.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands the right of an individual or corporation to protect his, her, or its reputation by recognizing that a Canadian court has jurisdiction to hear a defamation claim if a substantial amount of harm occurred in the venue forum. This expands plaintiff options for defamation suits. However, this may be read to contract the freedom of expression by expanding the geographic area in which a publisher may be liable for potentially defamatory statements in the material they publish. The greater the area of geographic liability, perhaps the greater the chilling effect on controversial ideas a publisher may be willing to publish.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Canada is a common law country. Canada’s lower courts will be bound by the Supreme Court’s decision in this case.
Let us know if you notice errors or if the case analysis needs revision.