The Ontario Superior Court has recently applied the Supreme Court of Canada’s 2018 ruling in Haaretz.com v Goldhar, 2018 SCC 28 to dismiss a defamation action brought by Sikhs for Justice (SFJ) against an Indian based news outlet and the Republic of India (the Republic), on the basis that Ontario does not have jurisdiction. The decision in Sikhs for Justice v The Republic of India, 2020 ONSC 2628 provides important guidance on what the court considers when determining whether Ontario is an appropriate jurisdiction for online-based defamation claims, and therefore on the factors that parties should consider in starting litigation here.
The plaintiff and responding party, SFJ, is a not-for-profit organization incorporated in Ontario with offices in London, New York, Washington and Toronto. SFJ launched its “Referendum 2020 Project”, which it describes as a worldwide referendum for an independent Sikh nation in Punjab, India, to be called Khalistan. Pursuant to the Unlawful Activities (Prevention) Act, 2967, SFJ was designated as an unlawful association in India. As an “unlawful association,” SFJ cannot commence a proceeding in India, and anyone associated with the organization in India could be imprisoned.
The defendant and moving party, ANI Media Private Limited (ANI Media), is one of Southeast Asia’s largest news agencies. Under the State Immunity Act, RSC 1985 c S-18, the Republic of India is immune from the jurisdiction of Ontario and any judgment from the Ontario Superior Court. The Republic of India was not served with the statement of claim in this proceeding.
In the statement of claim, SFJ alleged that the Republic, along with various media allies in India, including the defendant ANI Media, engaged in a “smear campaign.” This campaign was a reaction to SFJ’s Referendum 2020 Project. SFJ identified three articles that it alleges the Republic used to carry out the defamatory campaign, one of which was written by ANI Media, titled “Twitter suspends pro-Khalistan activist Gurpatwant Singh Pannun's account.” These articles were published primarily in online forums that are accessible to Ontarians.
In determining whether ANI Media’s motion to strike the statement of claim would succeed, the court considered whether SFJ could show a “real and substantial connection” between Ontario and the subject matter of the litigation. To meet this “rather low” threshold, a plaintiff must establish one of four presumptive connecting factors to Ontario: (i) the defendant is domiciled in Ontario or is a resident of Ontario, (ii) the defendant carries on business in Ontario, (iii) the tort was committed in Ontario, or (iv) the contract connected to the dispute was made in Ontario. If a presumptive factor is established, the moving party can rebut it.
While the court adopted the principle enunciated in Haaretz that “[t]he situs of Internet-based defamation is the place where the defamatory statements are read, accessed or downloaded by the third party”, the court found that there was limited admissible evidence of Ontarians actually accessing and downloading the alleged defamatory words in this case. The fact that this presumptive connecting factor was barely met factored into the court’s subsequent analysis on whether the defendant could rebut this presumption of jurisdiction.
The court also noted that ANI Media making its content available to Ontarians on its YouTube channel was not sufficient to establish that ANI Media carries on business in Ontario (an important finding for organizations posting content on various online media platforms).
The court ultimately found that ANI Media had rebutted the presumption that the Ontario courts had jurisdiction, placing significant weight on whether it was “reasonable to expect that the defendant would be called to answer proceedings in that jurisdiction.” The court’s assessment of foreseeability of litigation is an important safeguard in cases involving allegations of online defamation, because there are concerns about forum shopping.
SFJ being effectively precluded from bringing this claim in India, by virtue of it being designated as an "unlawful association,” resulted in the relative inconvenience being greater for SFJ for prosecuting the claim in Ontario. This factor, however, was insufficient to persuade the court to permit the proceeding to continue in Ontario.
An important takeaway from this case is that plaintiffs responding to motions to dismiss a defamation claim for lack of jurisdiction should gather substantial firsthand evidence showing the alleged defamatory words’ were downloaded and accessed in Ontario and caused damage to reputation in Ontario. In this case, the court found that there was no evidence that thousands of Ontarians accessing and downloading the allegedly defamatory content (as alleged). Rather, there was only evidence by an SFJ employee and an SFJ volunteer. There was also no admissible evidence of harm to SFJ’s reputation or brand in Ontario.
The court’s emphasis on firsthand evidence of damage to reputation on this motion contrasts the unique damages regime for defamation actions. In defamation actions, plaintiffs can seek damages “at large”, meaning that a plaintiff does not need to prove the losses suffered from the defamatory statement. However, this case signals (as did Haaretz) that Canadian courts will be looking for stronger connections to Ontario (or other applicable province) in order to establish jurisdiction over online defamation cases.
Before commencing or responding to a claim for defamation resulting from an Ontario publication, it is important to consider whether Ontario is the proper jurisdiction.