In Braintech, Inc. v. Kostiuk, the B.C. Court of Appeal had to decide whether the mere posting of a message on an electronic bulletin board over the Internet created sufficient connections for a Texas court to assume jurisdiction over a B.C resident.
Briefly, the Defendant, a British Columbia resident, allegedly published defamatory information about the Plaintiff, a Nevada corporation domiciled in British Columbia with a research facility in Texas.
The Plaintiff sued the Defendant in Texas for defamation, obtained judgement and sought to enforce it in British Columbia.
In reversing the lower court’s decision that allowed the summary judgement application, the B.C. Court of Appeal considered the standard of review of a foreign judgement set by the Supreme Court of Canada in DeSavoye v. Morguard Investments Limited, [1990] 3 S.C.R. 1077.
The B.C. Court of Appeal had to decide whether there was a real and substantial connection between Texas and the wrongdoing that allegedly took place in that state, and a reasonable balance between the rights of the parties.
The Court considered the three categories of Internet activity in which American courts would assume personal jurisdiction as set out by Zippo Manufacturing Company v. Zippo DotCom, Inc. W.D. Pa, 1997. The first category includes instances where personal jurisdiction is found because the defendants entered “into contracts with residents of foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet”. The second category, a middle ground, deals with situations “where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information with the host computer”. The third category, at the opposite end of the scale, where a court would not exercise personal jurisdiction, deals with passive web sites, i.e. sites that merely provide information.
The court based its analysis on DeSavoye and Zippo, reasoning that the posting of a message on an out-of-state bulletin board consisted of a “mere transitory, passive presence in cyberspace”, and therefore does not constitute a real and substantial connection.
Furthermore, the Internet is a global computer network with users in multiple jurisdictions, having over 30 million users. It is reported that the number of web pages doubles every 100 days. Therefore, it is all the more important to “protect [...] defendants from being forced to answer for their actions in a foreign jurisdiction based on “random, fortuitous or attenuated” contacts .