Following the Right Lead:
Gutnick and the Dance of Internet Jurisdiction
Mary Paterson
nature of the tort. It is this approach that CanadianJurisdiction and the Internet
courts should adopt.3
s improving methods of travel and communication
Afacilitatedthe shift from an agrarian to an industrial
society, the common law courts increasingly faced
Current Canadian Lawinterjurisdictional disputes. Although British paternalism
dominated early cases in which courts assumed jurisdic- ne factor in choosing an approach to jurisdiction
tion over people, property, and actions in distant lands, Oandthe Internet is the existing jurisdictional law in
these cases and the imperial attitudes informing them Canada. Canadian courts have jurisdiction if the parties
were slowly replaced by more modest jurisdictional are served in the forum, if the parties submit to jurisdic-
assertions based on a sense of comity.1
The shift from an tion, or if the suit falls under a service ex juris rule and
industrial society to an information-based society and has a real and substantial connection with the jurisdic-
the simultaneous growth of a global infrastructure based tion. Even when the court has jurisdiction through one
on satellite, telephone, cable, and cellular technologies of these methods, the court can decline to hear the case
have stretched jurisdictional doctrines in new ways, based on the court's power to control its own process
calling into question traditional methods of balancing under the doctrine of forum non conveniens. This doc-
the interests of nations in protecting and regulating their trine has been relaxed, making it easier for defendants to
citizens. For example, the Internet allows people to convince courts not to assume jurisdiction to compen-
broadcast defamatory statements to an international sate for the increasing breadth of service ex juris rules.
audience without setting a physical or, as some would The substantial connection test also restrains courts from
argue, an electronic foot outside of their home forum. In asserting jurisdiction under service ex juris rules. The test
such a situation, is it just for a foreign court to assume derives from De Savoye v. Morguard Investments Ltd.,4
jurisdiction over the defendant who may have adhered in which the Supreme Court of Canada stated that pro-
to local law and been unaware of foreign law? On the vincial courts should enforce the judgments of other
other hand, is it just to refuse to exercise jurisdiction over provincial courts where those courts assumed jurisdic-
a defendant who may have adhered to a local law that tion in an appropriately restrained manner consistent
did not reflect the common attitude towards defama- with order and fairness. According to the Court, order
tion, thereby leaving all reputations vulnerable to foreign and fairness necessitated a substantial connection
attack? Canadian appeal courts have not yet addressed between the jurisdiction and some part of the suit. This
this jurisdictional question in the context of the Internet, requirement now extends to foreign judgments.5
although courts of all levels have struggled with the The substantial connection test in Morguard does
growth of interjurisdictional activity in contract and tort. not explain what the jurisdiction must be connected
However, as the Internet grows and its uses multiply, the with. The Supreme Court refers to the subject matter of
courts will increasingly face the difficult jurisdictional the action, damages suffered, the defendant, and the sub-
issues raised by Internet activity. Thus, Canada must ject matter of the suit. The Ontario Court of Appeal
choose the approach it will apply. articulated eight factors, including the connection
The High Court of Australia addressed this choice between the forum and the plaintiff's claim, the connec-
in Dow Jones v. Gutnick.2
Dow Jones published defama- tion between the forum and the defendant, unfairness to
tory statements about Joseph Gutnick in Barron's Online the defendant, unfairness to the plaintiff, the involve-
on its subscription Web site. Gutnick brought an action ment of other parties in the suit, the Court's willingness
against Dow Jones in Victoria, Australia, for damage to to enforce foreign judgments rendered on the same juris-
his reputation in Australia. Although Dow Jones urged dictional basis, whether the case is inter-provincial or
the Court to adopt the single publication rule for finding international in nature, and global standards of comity
jurisdiction over defamation on the Internet, a rule that and jurisdiction.6
Both Courts focus on broad connec-
exists in the United States, the Court rejected that rule, tions that balance parties' interests; this focus differs from
instead forging the different approach of focusing on the the American due process approach, which constitution-
49
50 Canadian Journal of Law and Technology
ally requires that the jurisdiction have some minimal tory meaning, and thus had neither infringed the mark
contacts with the defendant, regardless of the other fac- nor caused any damage. Although the Court does not
tors. Despite this difference, Canadian courts seem to specifically reject the interactivity test, instead relying on
look to American jurisprudence for assistance with juris- a narrow interpretation of the Trade-mark Act12
to find
diction over Internet activities. for the defendant, in obiter, the Court suggests that ``it is
much more sensible to apply tort principles to accom-
The British Columbia courts are the first to have
modate new technologies''.13
The Australian High Court
applied the substantial connection test to Internet
applied precisely this approach in Gutnick.
activity. In Braintech Inc. v. Kostiuk,7
the Court of Appeal
addressed whether or not to enforce a Texas default
judgment obtained by a British Columbia company
against a British Columbia resident in a defamation suit.
Australian and AmericanThe defendant posted defamatory statements on an
ApproachesInternet bulletin board. Because the plaintiff traded its
stock over the Internet, it claimed that its reputation was n four concurring judgments, the Australian High
harmed in Texas, where people could read the com- ICourt rendered a unanimous decision that the pro-
ments and decline to purchase stock. The Court of posed single publication rule was inappropriate, Victoria
Appeal refused to enforce the judgment, stating that had jurisdiction over the defamation suit, and Victorian
Texas did not have a substantial connection with the law applied to the case. Dow Jones argued that the
suit. However, it relied heavily on American Internet Internet is a novel medium necessitating a new way of
cases, including Zippo Manufacturing Company v. locating the place of the tort. The place of the tort is
Zippo Dot Com Inc.8
In Zippo, the District Court of important in Australia, and in Canada, because service ex
Pennsylvania stated that a court could not assert jurisdic- juris rules allow courts to take jurisdiction over torts
tion over a defendant where that defendant operated a committed in that jurisdiction, and because the place of
passive Web site, because that defendant would not have the tort determines choice of law which affects a forum
sufficient contacts with the jurisdiction to satisfy the con- non conveniens decision. Thus, the location of the tort
stitutional due process clause. The British Columbia critically impacts whether or not the court has jurisdic-
Court of Appeal characterized the bulletin board as a tion and whether or not that court will choose to exer-
passive site on which Kostiuk did not engage in com- cise jurisdiction by rejecting a forum non conveniens
mercial activity; as such, Texas did not have jurisdiction. argument.
The adoption of the interactivity test is problematic Dow Jones argued that the Court should adopt the
for two reasons. First, the Canadian substantial connec- single publication rule14
to assess the place of the tort in
tion test does not assess whether or not the foreign defamation suits. The single publication rule states that
forum has assumed jurisdiction correctly under its own plaintiffs can bring only one claim for damage in all
laws; rather, the test focuses on whether there is a sub- jurisdictions caused by defamatory statements, and that
stantial connection, as defined by Canadian jurispru- the place of publication is the place in which the mate-
dence, between the suit and the foreign jurisdiction. rial is first comprehensible. Therefore, the place of the
Therefore, American due process and minimal contacts tort in Internet defamation is the place at which the
cases cannot assist a Canadian court's assessment of sub- information is uploaded onto a server. If the server is the
stantial connection. Second, by relying on the interac- place of publication, then the law of that place governs
tivity test, the Court of Appeal has imported a defendant- the publication. Dow Jones argued that such a result is
oriented test based on the American Constitution into just, because the Internet is a passive medium such that
the Canadian context, contrary to the more balanced the publisher has little control over the location of its
Canadian approach outlined above. readership, and that a single governing law leads to cer-
tainty and fairness. Under this rule, the defamatory state-Some cases contradict Braintech's adoption of
ments in Gutnick were published on a New JerseyZippo; however, these cases also rely on American juris-
server, New Jersey law would apply, and Victoria wouldprudence. In Easthaven Ltd. v. Nutrisystem.com Inc.,9
the
not have jurisdiction under the service ex juris rules orOntario Superior Court of Justice specifically adopted
under a forum non conveniens analysis. Although thePanavision International v. Toeppen,10
a case in which
single publication rule has benefits,15
Dow Jones con-the Court of Appeals for the Ninth Circuit used the
ceded that where the location of the server was opportu-effects test instead of the interactivity test. The Easthaven
nistic, the Court could apply a different analysis to findCourt made the same error that was made in Braintech,
the place of the tort.using the American cases to refuse jurisdiction in
Canada. However, in Pro-C Ltd. v. Computer City Inc.,11
The Court unanimously rejected this proposal. All
the Ontario Court of Appeal overturned a trial judgment judges except for Justice Kirby rejected the idea that the
relying on Zippo and Braintech in the trademark con- Internet is a novel medium. Justices Gleeson, McHugh,
text. The Court of Appeal found that the American Gummow, and Hayne proceeded to reject the single
defendant had not used the trademark within the statu- publication rule because the rule was unclear, particu-
Following the Right Lead: Gutnick and the Dance of Internet Jurisdiction 51
larly given the ambiguity of the exceptions for opportu- tort reduces the number of jurisdictions in which liti-
nistic or adventitious behaviour. Furthermore, these jus- gants can bring a suit. For example, Gutnick could only
tices stated that the convenience of the poster of material claim damage in Victoria (the jurisdiction in which he
must be balanced with the convenience of the plaintiff lived), Israel (the jurisdiction in which he completed
and the differing balances struck between free speech charitable works), and the United States (the jurisdiction
and protection of reputations in different nations. They in which he completed some business transactions).
stated, ``Certainty does not necessarily mean singu- Only in these jurisdictions did Gutnick have a reputa-
larity''.16
Finally, the Court pointed out that the develop- tion to injure. Thus, the spectre of liability in every juris-
ment of the single publication rule from a jurisdictional diction raised by Dow Jones, like most spectres, is ficti-
doctrine to a doctrine governing choice of law occurred tious.
in the United States to satisfy the Sixth Amendment, a
Furthermore, the Court pointed out that issues of
constitutional requirement that applied to criminal and
jurisdiction and choice of law must be decided sepa-
not to civil matters. Justice Gaudron concurred with this
rately. Although the Victorian Court might rightly
analysis, adding the contention that the single publica-
assume jurisdiction over Gutnick's suit in its entirety,
tion rule was developed to prevent a multiplicity of suits
assuming that he claimed damage to his reputation in
and that estoppel doctrines were sufficient to protect
Israel and the United States as well, the Victorian Court
parties from multiple suits. Justice Callinan concurred,
could not correctly apply Victorian law to the entire suit.
stating that the adoption of the single publication rule
Rather, using the place of the tort as the place of damage
would lead to ``an American legal hegemony in relation
to the reputation, the Victorian Court would apply Vic-
to Internet publications'',17
because most servers are
torian, American, and Israeli law to assess the damage to
located in the United States.
Gutnick's reputation in the different nations. Thus,
Justice Kirby concurred in the result but not in the Gutnick would have succeeded in his Victorian claim
analysis. He alone concluded that the Internet was more and failed in his American claim. The inconsistent result
than a mere extension of existing communications does not point to an ineffective rule; rather it reveals a
media, and that a change in the rules was required. How- rule that is sensitive to the different values placed on free
ever, he found that such a change was beyond judicial speech and protection of reputation in different coun-
capacity. Not only did Justice Kirby rely on the long- tries. The inconsistent result is consistent with the princi-
standing history of defamation law including the mul- ples of comity that inform jurisdictional principles in
tiple publication rule, but he also pointed to Australian Australia and in Canada.
legislation premised on the existence of the multiple
Not only did the Australian Court approach thepublication rule. Furthermore, he stated that if a nation
jurisdictional issue through the lens of established torts,takes legislative initiative to deal with a problem, as Aus-
but it also failed to consider the jurisdictional tests devel-tralia was doing at the time of the decision, then the
oped in the United States. This omission, particularlyjudiciary does not have the capacity to remedy that same
given Dow Jones' discussion of the American due processproblem. Finally, Justice Kirby pointed to the flaws
guarantee18
and the minimal contacts approach, at ainherent in Dow Jones' proposed rule, including the ease
minimum suggests that the Court thought the Americanof manipulation, the ambiguity of the exceptions, the
jurisdictional approach to be irrelevant in the Australiandifficulty that plaintiffs would have locating the server,
context. Not only should Canadian courts follow thethe power imbalance in defamation actions that would
Australians in adopting a tort-based jurisdictional anal-accrue to the United States, and the lack of technological
ysis, but they should also find the American jurispru-neutrality in the rule.
dence to be irrelevant to Canadian law. Before such a
In adopting the multiple publication rule -- a rule
proposition can be supported, however, I must explore
which states that every new publication of a defamatory
the effects and the interactivity tests.
statement, such that another reader or listener under-
stands the statement, gives rise to a new claim -- the Both tests fit within the American jurisdictional
Australian Court made an important statement about framework found in the Fourteenth Amendment. Courts
finding jurisdiction in Internet cases concerning torts can assert general or specific jurisdiction under the long-
and, through its lack of discussion, about the value of arm statutes of each state. General jurisdiction exists
American jurisdictional jurisprudence. All members of where the defendant has continuous activities in the
the Court stated that when determining the place of the state, creating jurisdiction over all claims related to that
tort, courts should examine the factors in the context of defendant. This situation rarely arises in the context of
the tort in question because the nature of the tort alters the Internet. Specific jurisdiction exists where the defen-
where that tort occurs. Therefore, in the case of defama- dant purposefully avails itself of the forum, where the
tion, the Court found that the tort arose when damage claim arises as a result of the defendant's forum-related
occurred or where the reputation was injured. In activities, and where the exercise of jurisdiction is reason-
Gutnick, damage occurred in Victoria; therefore, the able. Many long-arm statutes allow jurisdictional asser-
assertion of jurisdiction was appropriate. As both the tions to the extent that the Constitution permits such an
majority and Justice Kirby pointed out, the nature of the assertion. Therefore, the due process analysis is critical. In
52 Canadian Journal of Law and Technology
International Shoe Co. v. Washington,19
the United Finally, the active Web site also fails to serve as an appro-
States Supreme Court established a two-part test for due priate proxy for jurisdiction. As Michael Geist points out,
process, requiring that the defendant have minimum While the active Web site may want to sell into every juris-
contacts with the forum state, such that maintenance of diction, the foreseeability of a legal action is confined prima-
rily to those places where actual sales occur. The Zippo testthe suit does not offend traditional notions of fair play
does not distinguish between actual and potential sales.26
and substantial justice.20
The flexibility of this standard
``permits a court to respond to technical and social These failings in the Zippo test have caused some Amer-
change and better protect the forum state's residents ican courts and scholars to return to traditional
from novel issues that arise from new media such as the approaches to jurisdiction.27
One such approach is the
internet (sic)''.21
Generally, the courts assess the minimal effects test, which was first articulated by the United
contacts requirement through the lens of purposeful States Supreme Court in Calder v. Jones.28
In Calder, the
availment by the defendant. It is only at the stage of Court found that California courts could assume juris-
assessing reasonableness that the court considers factors diction over a defamation suit, despite the fact that the
such as the plaintiff's interest in obtaining convenient defamatory newspaper was printed in Florida, because
relief and the nation's interest in promoting a certain the defendant engaged in
social policy. However, jurisdiction rarely founders on
(1) intentional actions (2) expressly aimed at the forum statethe reasonableness assessment, because modes of travel
(3) causing harm, the brunt of which is suffered -- and
and communication, particularly within the United which the defendant knows is likely to be suffered -- in the
States, are relatively cheap and easy to access.22
As a forum state.29
result, even where a plethora of factors support the
The effects test is one example of the alternatives to theassumption of jurisdiction, unlike a Canadian court, the
single publication rule found in the United States. How-American court will refuse such jurisdiction if the defen-
ever, some courts focused too heavily on the effects por-dant does not have sufficient minimal contacts with the
tion of the test, failing to strictly require the intent.state.
Under this interpretation, the test ``can be difficult to
contain''.30
Such loose readings were rejected by theIn an attempt to analyse minimal contacts on the
Ninth Circuit in Panavision, where the Court foundInternet, the District Court of Pennsylvania developed
jurisdiction to be proper under the effects test becausethe interactivity test in Zippo. Under this test, the court
the defendant, ``as he knew [his conduct] likely would,analyses the activity level of a Web site and classifies it as
had the effect of injuring Panavision in California wherea passive site, an active site, or an intermediate site. If the
Panavision has its principal place of business''.31
Thesite is passive, such that the publisher merely places
Ninth Circuit's use of the effects test in Panavision isinformation on that site, then the foreign court cannot
interesting, because the same Court found the effects testassert jurisdiction. If the site is active, such that the pub-
to be inapplicable in Cybersell less than one year earlier.lisher solicits business from the foreign jurisdiction,
enters into contracts with and delivers goods to the In Cybersell, the Court considered both tests. The
inhabitants of the forum, and generally conducts busi- Court refused to apply the effects test, because the defen-
ness there, then jurisdiction is appropriate. However, dant in Cybersell did not purposefully avail itself of the
where the Web site is in between these two extremes, forum. Instead, the Court used the interactivity test, char-
the court must look for ``something more''23
than just a acterized the offending Web site as a passive site, and
Web site to found jurisdiction. As the Court in Bensusan refused jurisdiction. However, given that the effects test
Restaurant Corp. v. King24
points out, this requirement requires purposeful availment in the sense that actions
for something more usually derives from the long-arm must be intentional and expressly aimed at the forum
statute as well as the due process requirement. state, the Court's finding of a lack of jurisdiction is con-
sistent with the application of the effects test. The Court
The interactivity test, although still applied, has
did not need to state that the effects test was inappli-
been severely criticized. First, ``substantial technological
cable, but rather that it was not met.
improvements''25
have practically eliminated the passive
Web site. Therefore, the non-technology-neutral nature The case that best reveals the confusion plaguing
of the test renders it of little value in the long term. the effects and interactivity tests is Revell v. Lidov,32
a
Furthermore, ``passive'' does not always equate to a lack case addressing a defamation claim. The Court of
of purposeful availment. In the case of defamation, a Appeals for the Fifth Circuit in December 2002 rejected
defendant could post defamatory material on a techno- the dichotomy between the effects test and interactivity
logically passive site with the explicit intent of injuring test, stating, ``Nor is the Zippo scale, as has been sug-
the defamed person's reputation in a specific jurisdiction. gested, in tension with the `effects' test of Calder v. Jones
Under the Zippo test, the defendant would escape lia- for intentional torts''.33
The Court found that both tests
bility. More problems arise in the intermediate category. are facets of the purposeful availment criteria, and that
The ``something more'' requirement simply forces courts most cases conclude that a Web site does not constitute
to return to traditional cases to assess purposeful avail- purposeful availment unless it targets a particular juris-
ment, rendering the Zippo test of little analytical value. diction or a particular person. However, the Court
Following the Right Lead: Gutnick and the Dance of Internet Jurisdiction 53
admitted the possibility that a Zippo passive Web site ties. Thus, the defamer targets the specific jurisdiction in
could satisfy the effects test by intentionally availing itself which the reputation exists by targeting the reputation.
of a forum.34
Perhaps to escape this conundrum, the
Court characterized the Web site as Zippo-interactive
and then used the effects test to analyse whether or not
jurisdiction was appropriate. In this case, the Court
A Change of Direction: Followingfound that jurisdiction was not appropriate, because the
Gutnick's Leaddefamatory article did not mention that the plaintiff
lived in Texas, did not discuss the plaintiff's activities in he second difference between the effects test and
Texas, and was not directed at Texas readers. Thus, the Tthetort-focused test in Gutnick illuminates the first
Court concluded that the article did not focus on Texas reason supporting the Canadian choice of the Gutnick
enough to purposefully enter that jurisdiction, despite approach over the American effects or interactivity tests.
the fact that the defamed person lived in Texas and had This difference is that, at a fundamental level, the effects
a reputation there. test and the tort-focused test begin their analysis from a
different context. Both tests have at their centre a con-
This result is interesting in light of Gutnick, and in
cern about jurisdiction. However, the effects test requires,
light of several comments made by the Fifth Circuit
rather arbitrarily, intentional action and damage, regard-
about the nature of defamation and the Internet. First,
less of the nature of the activity in question. In essence,
the Court in Revell stated that defamation is similar to
the effects test asks: Should we take jurisdiction over this
other torts in response to the plaintiff's request that the
defendant? The tort-focused approach places the jurisdic-
Court reject Zippo on the basis of the unique nature of
tional question in the context of the dispute, asking:
defamation. The Court added, ``Defamation has its
Should we take jurisdiction over this dispute between
unique features, but shares relevant characteristics with
the plaintiff and the defendant? The distinction may
various business torts''.35
This conclusion is similar to
seem trivial. The result is not. At a principled level, the
that found in Gutnick and Pro-C, both of which suggest
courts exist to resolve disputes; therefore, focusing on the
that torts are similar enough to each other to provide a
defendant rather than the dispute does not sit well with
stable lens through which to analyse jurisdiction, while
the fundamental purpose of courts. It is possible to argue
permitting small variations to take into account the idio-
that the defendant has the most at stake in the process;
syncratic nature of each tort.
perhaps this is true in the criminal setting. However, in
the civil setting, the dispute concerns who should bearFurthermore, in some aspects, the effects test as it is
the loss or the cost of the defendant's actions. Therefore,applied in Revell is similar to the tort-focused approach
both parties have the same loss at stake. Jurisdictionaladopted in Gutnick. Instead of focusing on the medium
rules recognize this difference between civil and criminalthrough which the tort is committed, the effects test
actions. Given that a judgment in a civil case will have anlooks for intentional actions expressly aimed at a partic-
economically detrimental effect on the losing party, beular forum causing harm in a jurisdiction that is reason-
that party the plaintiff or the defendant, predicating juris-ably foreseeable. The Gutnick approach examines the
diction on the defendant's contacts with the jurisdictiontort of defamation, and finds that the damage or effects
is odd, particularly when a multiplicity of doctrines existof defamation are reasonably foreseeable in jurisdictions
to address abuse of process by the plaintiff in his or herin which the plaintiff has a reputation. However, there
choice of the original forum.are two differences between the effects test and the tort-
focused approach. The effects test requires a high level of The difficulty of focusing on the defendant rather
intent to meet the constitutionally entrenched defen- than on the tort becomes apparent when courts take
dant-oriented approach in the United States. The tort- tests based on the defendant and developed in the con-
focused approach allows more flexibility with respect to text of one tort, and transfer those tests to another tort.
intent, so that jurisdiction is appropriate in a tort which For example, the interactivity test was developed in the
does not require express aiming at a jurisdiction, but context of trademark infringement. In this context, given
rather at a person, such as defamation. Thus, the tort- that trademark infringement does not require intent to
focused approach would not lead to the absurd result in infringe, the passive/active dichotomy may act as a good
Revell, where a plaintiff would have succeeded if the proxy for purposeful availment of another forum. How-
article defaming him included the name of the jurisdic- ever, transferring this test into the defamation context, as
tion in which he resided, but failed because that one occurred in Barrett v. Catacombs Press,36
leads to troub-
word was lacking. Instead of requiring an express men- lesome results. In Barrett, the Court found that because
tion or aim at the jurisdiction, the tort-focused approach the Internet activity in question was passive, the defen-
recognizes that a reputation exists in the knowledge of dant had not purposefully availed himself of the jurisdic-
other people, and that generally the people who hold tion.37
As discussed above, in defamation, such logic is
that knowledge are also aware of the residence of the fallacious because targeting the reputation necessarily
defamed person because those people have contact with targets the jurisdiction in which the reputation exists.
the defamed person during that person's regular activi- The same difficulty arises with the effects test, which
54 Canadian Journal of Law and Technology
[T]he Supreme Court of Victoria in Gutnick, supra, appliedrequires intentional actions expressly aimed at the forum
a real and substantial connection test to conclude that it wasstate. This test more coherently addresses defamation, a
the appropriate forum for deciding a defamation action in
tort that contains some element of intent, than it does a respect of material uploaded onto the defendant's server in
strict liability tort such as trademark infringement. If the New Jersey and downloaded by end users in Victoria.
courts had in the first instance focused on the tort in
Thus, a Canadian appellate court recognized thatquestion and not on the defendant's relationship with
the Australian approach is concordant with Canadianthe forum, the courts would have recognized the weak-
jurisprudence.nesses inherent in both the interactivity and the effects
tests.
The Ontario Court of Appeal signalled a similar
recognition in Pro-C Ltd., and suggested a tort-basedFocusing on the tort instead of on the defendant's
approach to jurisdiction on the Internet instead ofcontacts has several benefits. First, it results in tech-
relying on the effects and interactivity tests. There arenology-neutral rules. Technology-neutral tests lead to
cases adopting the interactivity test and the effects test ingreater certainty and more principled results because the
Canada; these cases make the error of using Americancourt is not required to delve into the minutiae of tech-
tests to decide whether or not the Canadian substantialnological developments to assess whether or not a test is
connection test is met without adjusting the tests to takemet. For example, under the passive/active distinction,
into account the defendant-oriented bias built into thethe court may be asked to assess whether or not and
tests.40
However, the fact that the courts misapplied thehow the Web site used cookies, facts that are completely
American case law does not lead to the conclusion thatirrelevant to a defamation action. Furthermore, in an era
the tests could not be adjusted to take into accountwhere technology progresses as rapidly as it does today, a
Canadian jurisdictional values. Such an adjustmenttest developed in a case based on facts that occurred
would require rewriting the tests to conform to Cana-more than 18 months before the trial is already out of
dian law and to eliminate the confusion between thedate. Secondly, focusing on the tort allows the court to
effects and interactivity tests. If the courts are to rewritearticulate principles of jurisdiction more generally,
the test, it makes more sense to start from a solid founda-because the analysis for each tort begins with the foun-
tion than from a flawed and confused set of cases. Such adational principles of jurisdiction. A defendant-based
foundation is provided in Pro-C Ltd. The Ontario Courtapproach assumes that the defendant must have contacts
of Appeal refused to adopt the American cases becausewith the jurisdiction, without articulating why those
they were irrelevant to the trademark legislation in ques-contacts must exist. Thus, it is difficult to predict which
tion. In so doing, and in its statements in obiter, thecontacts are sufficient because the original spirit or the
Court demonstrated sensitivity to the nature of the claimunderlying purpose of the test is lost or altered in the
and the relationship between the claim and assertingsuccessive iterations of common law judgments. Not
jurisdiction. This case is consistent with the sentimentsonly does the tort-focused approach require such basic
expressed in Gutnick, and provides some persuasiveprinciples, but it also leads to greater clarity and predict-
authority for adopting the Australian decision.ability as a result.
The second reason for adopting Gutnick instead of The final reason supporting a Canadian adoption of
an American approach is more pragmatic: The Austra- Gutnick is the similarity of Canadian and Australian tort
lian approach to jurisdiction is similar to the Canadian law, particularly in the area of defamation. At the level of
approach. In Australia, a plaintiff can serve a foreign party principle, both Australia and Canada emphasize the
under service ex juris rules; before that party can proceed value of freedom of expression. Both also recognize that
with the case, it must prove to a court that the service ``A democratic society . . . has an interest in ensuring that
was properly effected and that the claim falls within the its members can enjoy and protect their good reputation
service ex juris rules. At the same time, the defendant can so long as it is merited''.41
Furthermore, neither Canada
present a forum non conveniens challenge to the pro- nor Australia has adopted a single publication rule.42
ceeding. Not only does the Australian court use a similar Therefore, an approach to jurisdiction in defamation
forum non conveniens analysis based on the House of cases predicated upon at least similar law, such as that
Lords decision in Spiliada,38
but the court also takes a used in Gutnick, better integrates with the Canadian
more balanced approach to jurisdiction than American balance between free speech and the protection of repu-
courts, which are forced into a defendant-oriented posi- tations than an American approach could do. At the level
tion. Like Canadian courts, Australian courts assess the of doctrine, several pre-Internet cases in Canada
plaintiff's contacts with the forum, the nature of the addressing the problem of jurisdiction in cross-border
claim, hardships to the plaintiff, and hardships to the defamation claims used a similar reputation-oriented
defendant. The Federal Court of Appeal recognized this approach to locate the tort of defamation. Instead of
similarity in Society of Composers, Authors & Music relying on the place of broadcast, as Dow Jones urged in
Publishers of Canada v. Canadian Assn. of Internet Prov- Gutnick, the Ontario Court in Jenner v. Sun Oil43
found
iders39
by discussing the ratio of Gutnick in Canadian it startling to think that ``one may, while standing south
jurisdictional language. Justice Evans stated: of the border . . . , through the medium of modern sound
Following the Right Lead: Gutnick and the Dance of Internet Jurisdiction 55
amplification, utter defamatory matter which is heard in Other Works Consulted
a Province in Canada north of the border, and not be
said to have published a slander in the Province in which
it is heard and understood''.44
Justice McRuer clearly Jurisprudence
found that the tort was located where the reputation was
1. American Information Corporation v. American
damaged because the ``tort consists in making a third
Infometrics Inc. (2001), 139 F. Supp. 2d 696 (WL).
person understand actionable defamatory matter''.45
This
jurisprudence is consistent with the approach taken in 2. Compuserve Inc. v. Patterson, 89 F. 3d 1257 (6th
Gutnick. Cir. 1996) (Lexis).
3. GTE New Media Services Inc. v. Bellsouth Corp.
199 F. 3rd 1343 (D.C. Cir. 2000) (Lexis).
Areas for Further Research
4. S. Morantz Inc. v. Hang & Shine Ultrasonics, Inc.,
lthough the tort-based approach avoids the
79 F. Supp. 2d. 537 (E.D. Penn 1999) (WL).
Aproblems of technological bias and lack of princi-
pled analysis, it may create others, all of which must be 5. Young v. New Haven, 315 F. 3rd 256 (4th Cir.
examined more closely. Dow Jones complained that a 2002) (Lexis).
tort-based approach would lead to any person on the
Internet being liable in every jurisdiction for a particular
Secondary Materialsaction. First, the above discussion suggests that a torts-
based approach is rigorous enough to eliminate over- 1. Beatty, Patrick, ``Litigation in Cyberspace: The
broad jurisdiction. It is, perhaps, more rigorous than the Current and Future State of Internet Jurisdiction''
international community requires, given the plaintiff (1999), 7 U. Balt. Intell. Prop. L.J. 127 (Lexis).
focus of the Brussels Convention.46
Coupled with
2. Celedonia, Baila H. & Joel Schmidt, ``Internetcommon law doctrines preventing abuse of process,
Jurisdiction: The Global Issue of Liability forincluding those that prevent a multiplicity of actions, the
Trademark Infringement on the Web'' (2002),torts-based analysis will lead to appropriate jurisdictional
703 PLI/Pat 1041 (WL).decisions. Furthermore, once a court assumes jurisdic-
tion, there are many ways to express the comity that 3. Cizek, Adam, ``Traditional Personal Jurisdiction
informs Canadian jurisdictional rules. For example, and the Internet: Does it Work?'' (1999), 7 U.
choice of law allows multiple laws to be applied to con- Balt. Intell. Prop. L.J. 109 (Lexis).
duct, including the law of the defendant's jurisdiction.
4. Dutta, Anindita, ``Zippo Manufacturing Co. v.Also, local enforcement mechanisms for foreign judg-
Zippo Dot Com, Inc. Case Comment'' (1998), 13ments, particularly in Canada, require that the original
Berkeley Tech. L.J. 289 (WL).court have assumed jurisdiction in a reasonable manner
based upon a substantial connection with the case. Even
5. Exon, Susan Nauss, ``A New Shoe is Needed to
if such jurisdiction is appropriately taken, Canadian
Walk through Cyberspace Jurisdiction'' (2000),
courts can refuse to enforce a judgment based on public
11 Alb. L.J. Sci. & Tech. 1 (Lexis).
policy. Thus, laws that Canadians would view as deeply
6. Geist, Michael, ``New Net laws reach beyond bor-repugnant will not be enforced in Canada, and assets in
ders'', The Globe and Mail (27 June 2002),Canada will be protected from unreasonable judgments.
online: http://www.theglobeandmail.com/In the final analysis, Canada and Australia have decided
servlet/ArticleNews/printarticle/gam/20020627/that a balanced approach to jurisdiction is appropriate in
TWGEIS.non-Internet cases. In Gutnick, the Australian High
Court applied that approach to the Internet with the
7. Gilman, Jeremey, ``Personal Jurisdiction and the
knowledge that the multiplicity of safeguards protecting
Internet: Traditional Jurisprudence for a New
international respect for national sovereignty would also
Medium'' (2000), 56 Bus. Law. 395 (WL).
apply to judgments concerning torts on the Internet.
Canadian courts, mindful of the same safeguards, the 8. Kaplan, Carl S., ``AOL Subscribers Can Be Sued
similarities between Australian and Canadian jurisdic- in Virginia, Judge Rules'' Cyber Law Journal
tional philosophies and defamation doctrines, should (11 June 1999), online: http://karws.gso.uri.edu/
choose the same approach. Marsh/Scans/11law.html.
9. Phan, Tu, ``Cybersell Inc. v. Cybersell Inc.'', Case
Comment (1999), 14 Berkeley Tech. L.J. 267
(WL).
10. Vartanian, Thomas P., ``A U.S. Perspective on the
Global Jurisdictional Checkpoints in Cyber-
space'' (2000), 610 PLI/Pat 861 (WL).
56 Canadian Journal of Law and Technology
Notes:
1
For example, the test for forum non conveniens shifted from showing that 23
Cybersell Inc. v. Cybersell Inc., 130 F. 3rd 414 (9th Cir. 1997) at 418
the plaintiff's choice of forum was ``oppressive, vexatious, and abuse of [Cybersell] (Lexis); adopted in ALS Scan Incorporated v. Digital Service
process'' in Moreno v. Norwich Union Fire Insurance Society Ltd, [1970] Consultants Incorporated, 154 L. Ed. 2d 773 (2003) (Lexis) and in Toys
16 D.L.R. (3d) 247, to showing that another forum was substantially more ``R'' Us Inc. v. Step Two, [2003] U.S. App. LEXIS 1355 (Lexis).
convenient and inexpensive in MacShannon v. Rockware Glass Ltd., 24
126 F. 3rd 25 (2d Cir. 1997) (Lexis).
[1978] A.C. 795 (H.L.), to showing that another forum was clearly more
25
James P. Donohue, ``Personal Jurisdiction'' (2002), 1 Internet Law andefficient or convenient in Spiliada Maritime Corp. v. Cansulex Ltd., [1986]
Practice §9:14 at 1 (WL).A.C. 460 (H.L.) [Spiliada].
26
Michael Geist, ``Internet Jurisdiction: The Shifting Adjudicatory2
[2002] 77 A.J.L.R. 255 (H.C.A.) [Gutnick].
Approach'', online: ISUMA http://www.isuma.net/v03n01/geist/3
Another choice that must be made is the choice of which law to apply
geist_e.shtml.
once jurisdiction is asserted. For example, once the Australian Court chose
27
For example, Zembeck states, ``Traditional legal notions do fit complexto assert jurisdiction, it also had to choose whether to apply Australian or
cyberspace questions once one realizes that both the actors and activitiesAmerican law. In Australia, the assertion of jurisdiction depended on the
are real'' (Zembeck, supra note 21 at 346). Ryan Yagura agrees, stating,place of tort, as it does in Canada pursuant to Tolofson v. Jensen, [1994] 3
``The Internet is basically a technologically advanced communicationsS.C.R. 1022. The Gutnick Court found that enough factors supported the
network and the courts should treat it similarly to other communicationsassertion of jurisdiction and the choice of Australian law. What would
systems in their personal jurisdiction analyses''. Ryan Yagura, ``Doeshappen in Canada with respect to choice of law is a question separate
Cyberspace Expand the Boundaries of Personal Jurisdiction?'' (1998) 38from, although just as complicated as, the question of jurisdiction, and is
IDEA 301 at 302 (WL).beyond the scope of this paper.
4
[1990] 3 S.C.R. 1077. 28
465 U.S. 783 (1984) [Calder].
5
Moses v. Shore Boat Builders, [1993] 106 D.L.R. (4th) 465 (B.C.C.A.) (B.C. 29
Panavision, supra note 10 at 1321.
enforces judgment from Alaska) and USA v. Ivey, [1996] 139 D.L.R. (4th) 30
Denis T. Rice, ``2001: A Cyberspace Odyssey Through U.S. and E.U.
570 (Ont. C.A.) (applies Morguard to foreign judgment).
Internet Jurisdiction over E-commerce'' (2001) 661 PLI/Pat 421 at 516
6
Muscutt v. Courcelles, [2002] 213 D.L.R. (4th) 577 (Ont. C.A.). (WL).
7
(1999), 171 D.L.R. (4th) 46 (B.C.C.A.) [Braintech]. 31
Panavision, supra note 10 at 1322.
8
952 F. Supp. 1119 (D.C. Penn. 1997) [Zippo]. 32
[2002] U.S. App. LEXIS 27200 [Revell] (Lexis).
9
(2001), 202 D.L.R. (4th) 460 (Ont. Sup. Ct.) [Easthaven]. 33
Ibid. at 11.
10
141 F. 3rd 1316 (9th Cir. 1998) [Panavision]. 34
The Court states, ``We need not decide today whether or not a `Zippo-
11
(2001), 204 D.L.R. (4th) 568 (Ont. C.A.) [Pro-C]. passive' site could still give rise to personal jurisdiction under Calder, and
reserve this difficult question for another time''. (Ibid. at note 30).12
R.S.C. 1985, c. T-13.
35
Ibid.13
Pro-C, supra note 11 at para. 16.
36
[1999] WL 231356 (E.D. Pa. 1999) (WL).14
The single publication rule is contained in §577A of the Restatement
(Second) of Torts (1977), and is adopted by legislation or judicial decision 37
The Court also discussed the effects test and found that the defamatory
in 27 American states. statements addressed the plaintiff's national activities and not the activi-
ties that occurred in the forum in question.15
Lori Wood, in an article supportive of the single publication rule, cites
several benefits of the rule, including preventing a multiplicity of suits 38
Spiliada, supra note 1.
and a multiplicity of claims, prevention of excessive damages through 39
[2002] 4 F.C. 3 at para. 188.multiple suits, conservation of judicial resources, and more convenience
and certainty for the parties involved. However, the benefits received 40
See, for example, Braintech, supra note 7 and Easthaven, supra note 9.
through a reduction of the multiplicity of suits, as stated by the Australian 41
George S. Takach, Computer Law (Toronto: Irwin Law, 1998) (QL). In
High Court, can also be received through estoppel and res judicata.
Canada, see Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R.
Furthermore, if the single publication rule as expressed by Dow Jones is
1130. Also see comments in Gutnick, supra note 2.
adopted, the plaintiff would not be able to avail itself of the longest
42
Philip H. Osborne, The Law of Torts (Toronto: Irwin Law, 2000) (QL).limitation period because the governing law would be that of the place of
Note that there is some support for a one-publication rule in Canada. Inthe server: Lori A. Wood, ``Cyber-Defamation and the Single Publication
Canada, the issue of multiplicity of claims is addressed through statuteRule'' (2001), 81 B.U.L. Rev. 895 (WL).
and common law by treating multiple parties publishing the same state-16
Gutnick, supra note 2 at para. 24.
ment as joint tortfeasors.
17
Ibid. at para. 200. 43
[1952] 2 D.L.R. 526.18
Discussed in Gutnick, ibid. at para. 187. 44
Ibid. at 529.19
326 U.S. 310 (1945). 45
Ibid.20
Manton M. Grier, ``Jurisdiction in Cyberspace'' (2003) 14 S. Carolina 46
``The Brussels Regulation provides, among other terms, that the courts ofLawyer 20 (Lexis); David Bender, ``Jurisdiction in Cyberspace'' (2000) 590
a consumer's domicile have jurisdiction over a foreign defendant if thePLI/Pat 27 (WL).
latter `pursues commercial or professional activities in the Member State21
Richard S. Zembeck, ``Jurisdiction and the Internet: Fundamental Fair- of the consumer's domicile or, by any means, directs such activities to
ness in the Networked World of Cyberspace'' (1996) 6 Alb. L.J. Sci. & that member state [. . .] and the contract falls within the scope of such
Tech. 339 at 351 [Zembeck] (WL). activities.''': Carole Aciman & Diane Vo-Verde, ``Refining the Zippo Test:
22
Stephen J. Newman, ``Proof of Personal Jurisdiction in the Internet Age'' New Trends on Personal Jurisdiction for Internet Activities'' (2002), 19
(2002), 59 Am. Jur. Proof of Facts 3d 1 (WL). Computer & Internet Law. 16 at 20 (WL).