Libel Tourism: Courting Foreign Litigants

The recent Supreme Court of Canada decision of Breeden v. Black, 2012 SCC 19, [2012] 1 S.C.R. 666 has reaffirmed that the tort of defamation occurs where the defamatory comment is published (i.e. read by a third party), even when publication takes place on the internet. Therefore, if a defamatory statement is published on the internet and accessed in a Canadian jurisdiction, the defamed party may be able to sue in Canada even if they are not a Canadian resident, and the defamatory publication was uploaded in a foreign jurisdiction. The SCC recognized that this could give rise to libel tourism; that is, foreign litigants bringing defamation actions in Canadian courts. This is of particular concern given the “plaintiff-friendly” defamation laws in Canada, as compared to the United States where an “actual malice” standard prevents many public figures from pursuing defamation actions. While not ruling on the issue, the SCC indicated a willingness to reconsider whether Canadian law would apply to such foreign plaintiffs. While the traditional rule (known as the lex loci delicti) would apply the law where the statement was published (i.e. Canada), the court indicated that it may be appropriate to apply the law where the most harm to the litigant’s reputation occurred. Most often, this will be the law of the foreign litigant’s home jurisdiction. This would constitute a significant change in Canadian defamation law and would potentially curb the problem of libel tourism. For a full summary of the decision of Breeden v. Black follow this link.