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January 10, 2005 |
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June 17, 2004 |
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Choice of Law In Roy v. North American Leisure Group Inc., the Ontario Court of Appeal had to consider choice of law rules.The plaintiffs had allegedly contracted an airborn virus on board a cruise ship. The operator had a choice of law clause in its contract selecting the law of England. The plaintiffs had missed the limitation period if the law of England applied.
The motion judge had determined that Canadian law applied. The Court of Appeal disagreed. Following Tolofson, the Court held that the "choice of substantive law is the law of the jurisdiction where the acitivity occurred".
In addressing the limitation period, the Court stated:
"[the] denial of the opportunity to claim damages by reason of the expiration of a limitation period does not constitute injustice sufficient to support an exception to the lex loci delicti rule."
10:57:07 PM 
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Ontario Court of Appeal Says Internet Defamation is Different than Defamation in Other Media |
In Barrick Gold Corp. v. Lopehandia, the Ontario Court of Appeal upped the ante on internet libel, awarding $125,000 to the plaintiff. Lopehandia had claimed that he nominally owned a Chilean mine site acquired by the plaintiff. The defendant had posted on various internet bulletin boards messages accusing the company of fraud, money laundering, orgainzed crime, and crimes against humanity among other things.
The trial judge had concluded that the postings were an "emotional, often incoherent" diatribe that no reasonable person would take seriously. She awarded $15,000.
The Court of Appeal disagreed, holding "that conclusion misjudged the target audience and the nature of the potential impact of the libel in the context of the Internet." The Court held further that the use of the internet made his blizzard of messages potentially more damaging and more believable because of the speed, scope and blunt , anonymous nature of statements on the web.
The Court posited:
"Is there something about defamation on the Internet - ‘cyber libel’, as it is sometimes called - that distinguishes it, for purposes of damages, from defamation in another medium? My response to that question is ‘Yes’."
"Thus, of the criteria mentioned above, the mode and extent of publication is particularly relevant in the Internet context, and must be considered carefully. Communication via the Internet is instantaneous, seamless, inter-active, blunt, borderless and far-reaching. It is also impersonal, and the anonymous nature of such communications may itself create a greater risk that the defamatory remarks are believed."
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"She failed to take into account the distinctive capacity of the Internet to cause instantaneous, and irreparable, damage to the business reputation of an individual or corporation by reason of its interactive and globally all-pervasive nature and the characteristics of Internet communications"
The Court of Appeal increased the damages to $75,000 and awarded an additional $50,000 in punitive damages.
The Court also granted an injunction against the defendant. In spite of the fact that the defendant resided in B.C. and had not attorned to the jurisdiction, the Court of Appeal concluded that Ontario had jurisdiction because the there was damage to personal property, Barrick’s goodwill, in Ontario.
The Court quoted from Matthew Collins, The Law of Defamation and the Internet:
"The Internet represents a communications revolution. It makes instantaneous global communication available cheaply to anyone with a computer and an Internet connection. It enables individuals, institutions, and companies to communicate with a potentially vast global audience. It is a medium which does not respect geographical boundaries. Concomitant with the utopian possibility of creating virtual communities, enabling aspects of identity to be explored, and heralding a new and global age of free speech and democracy, the Internet is also potentially a medium of virtually limitless international defamation."
Ontario will take jurisdiction over internet libel, regardless of where the defendant resides and will grant injunctions against defendants outside the jurisdiction.
9:57:10 PM
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April 5, 2004 |
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Jurisdiction and the Web Michael Geist has an article in the Toronto Star today on the divergence in internet laws and jurisdiction. He draws on the recent Canadian copyright decision on downloading music as well as a corporate survey of businesses; their number one concern is exposure to foreign lawsuits arising out of their internet initiatives. This is probably putting a chill on e-business development, but it is also encouraging localization of the internet environment.
8:16:44 PM
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March 28, 2004 |
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Long Arm - not in Oz Further to my recent post, I am glad to see that the Australian magistrate has blocked the attempted extradition of an Australian to the U.S. to face criminal copyright charges. If he has broken the law, he should be charged in Australia. If he hasn't broken local law, he should not face criminal liability in the U.S.
5:26:53 PM
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March 14, 2004 |
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The Long Arm of the Law I found this story a little disturbing. An Australian man who never set foot in the U.S. is facing extradition to the U.S. to face charges of criminal copyright breaches. The man is alleged to have been part of a conspiracy that cracked codes on copyrighted material and made it available to an internet club (a Warez site).
Do actions on the internet invite worldwide internet jurisdiction? Should sovereign states act to extradite their nationals to a foreign jurisdiction for actions on the internet? While I do not agree with pirating of software, shouldn't that be a matter for the local jurisdiction's criminal code? (I find it difficult to believe that Australia does not have statutes that cover this activity, but taking the article at face value, if you are not breaking local criminal law, why should you face extradition to another country.)
11:09:41 AM
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November 12, 2003 |
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Internet Jurisdiction. Found a very interesting post on George's Employment Blawg about internet jurisdiction thanks to Ernie:
Federal jurisdiction over out-of-state corporation based on maintenance of website
The Eighth Circuit, after lengthy analysis, concluded discovery should have been permitted into facts relating to Prudential's website and how and to what extent Missouri citizens used it. Under proper circumstances, therefore, the court concluded, maintaining a website may be sufficient contact with a state to support jurisdiction. Lakin v. Prudential Secs., Inc. (8th Cir. 11/04/03) [pdf] [Tech Law Advisor]
10:25:45 PM
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September 4, 2003 |
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| Gator v. L.L. Bean.
The Ninth Circuit found that California courts could exercise general jurisdiction over L.L. Bean, based on its continuous and systematic contacts with the state, specifically those contacts arising from its operation of a 'virtual store' over the Internet, national advertising and mailings into California. While it had never registered to do business in California, L.L. Bean derives 6% of its sales from California and sources products from there. Bancroft & MAsters v. Augusta National, 223 F.3d 1082 (9th Cir. 2000) is one of the few other 9th Circuit cases evaluating whether contacts over the Internet can give rise to general jurisdiction (in that case, they didn't).
L.L.Bean has sent a demand letter to pop-up ad promulgator Gator. Gator filed a declaratory judgement in California. I recently downloaded Google Taskbar 2.0 and it has blocked 200 pop-up ads in the week I have had it. That's 200 fewer interruptions in a week.
Gator.com v. L.L. Bean, 02-15035 (9th Cir. Sept. 2, 2003). [The Trademark Blog]
5:45:59 PM
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© Copyright 2005 Michael Girard.
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Shoot the Stars
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Canadian Courts
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