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1999 March 18
Braintech, Inc. v Kostiuk, (1999), 171 D.L.R. (4th) 46 (CA) [leave denied [1999] S.C.C.A. No. 236.

Nature of Internet Publication:  Website posting

Other forms of expression also involved? No

Texas court had jurisdiction simpliciter?  No

Texas court should have declined jurisdiction?   Yes

The British Columbia Court of Appeal refused to enforce a $300,000 (US) default judgment for libel and disparagement obtained by the plaintiff from a Texas court on the ground that there was no “real and substantial connection” between the parties and Texas at material times. 

The factual cornerstone of the Court’s ruling seems to be the lack of any evidence that anyone in Texas actually viewed or downloaded the allegedly defamatory matter which had been posted on a computer located outside Texas.  Accordingly, there was no evidence of any “publication” to a third party within Texas. 

The plaintiff’s application for leave to appeal to the Supreme Court of Canada was refused without reasons: [1999] S.C.C.A. No. 236.

Jurisdiction

The plaintiff Braintech unsuccessfully argued in the Court of Appeal that Texas had jurisdiction over its defamation claim because the Texas “long-arm” statute provided that a non-resident did business in Texas if the non-resident “commits a tort in whole or in part in this state.”  Braintech alleged in its statement of claim filed in British Columbia that the libel was disseminated on a “discussion group or bulletin board…established on the Internet to facilitate discussion and exchange of information regarding technology stocks…under the name Silicon Investor.” 

The Court of Appeal’s ruling does not say where the computer hosting the Silicon Investor was located but it clearly was not in Texas.  The Court of Appeal did note that the defendant Kostiuk was not the operator of Silicon Investor and that the “bulletin board [was] ‘passive’ as posting information volunteered by people like [the defendant], accessible only to users who have the means of gaining access and who exercise that means.”  Goldie J.A., writing the judgment of the Court of Appeal, stated as follows:

…the [plaintiff] must offer better proof that the defendant has entered Texas than the mere possibility [emphasis added] that someone in that jurisdiction might have reached out to cyberspace to bring the defamatory material to a screen in Texas.  There is no allegation or evidence [the defendant] had a commercial purpose that utilized the highway provided by the Internet to enter any particular jurisdiction…It would would create a crippling effect on freedom of expression if, in every jurisdiction the world over in which access to the Internet could be achieved, a person who posts fair comment on a bulletin board could be haled before the courts of each of those countries where access to this bulletin could be obtained.”

Goldie J.A. continued:

In the circumstances of no purposeful activity alleged on the part of Kostiuk and the equally material absence of any person in that jurisdiction having “read” the alleged libel all that has been deemed to have been demonstrated was [the defendant’s] passive use of an out of state electronic bulletin.  The allegation of publication fails as it rests on the mere transitory, passive presence in cyberspace of the alleged defamatory material.  Such a contact does not constitute a real and substantial presence.

Braintech Inc. v Kostiuk does not answer the question whether the tort of defamation would have been committed in Texas (in the eyes of British Columbia law) if someone in Texas actually had viewed or downloaded the defendant’s allegedly defamatory posting on the Internet.

Forum conveniens

The British Columbia Court of Appeal concluded that British Columbia was “the natural forum for the resolution of the dispute between two residents” and that “Texas was not even an appropriate forum.”  Writing the judgment of the court, Goldie J.A. noted the following factors:

The British Columbia Court of Appeal reversed the finding of the lower court on the issue of forum conveniens in part because the lower court judge failed to consider “whether there were any contacts between the Texas court and the parties which could, with the due process clause of the 14th Amendment to the Constitution of the United States, amount to a real and substantial presence.” 

See McConchie and Potts, Canadian Libel and Slander Actions, “Jurisdiction simpliciter,” page 149; “Recognition and Enforcement of Foreign Judgments,” page 158.

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