In Haaretz.com et al v Mitchell Goldhar (SCC case no. 37202), the Supreme Court of Canada is asked to decide whether the court in Ontario has jurisdiction to hear a defamation claim arising from an article widely published in Israel, but read online by a number of people in Canada.

The Supreme Court is also charged with considering whether Ontario constitutes the appropriate forum in which to adjudicate the claim. The case raises interesting questions of jurisdiction and forum conveniens in Internet libel claims.

Background

In 2011, an Israeli news organisation, Haaretz, published an article about Mitchell Goldhar. Mr Goldhar is a Canadian businessman with an interest in Ontario-based shopping centre chain, SmartCentres. He also owns Maccabi Tel Aviv FC, an Israeli football club. The article made certain disparaging comments about Mr Goldhar’s management of the club. Allegations included “penny-pinching” and a deficit of “long-term planning”. The article was available in print in Israel and on Haaretz’s Hebrew and English-language websites.

Of the tens of thousands of people who read the article, the majority did so in Israel, where Haaretz has a daily print circulation of over 70,000 and from where it maintains its websites. Haaretz has no print circulation, nor any subscribers, employees or offices, in Canada. The online English-language article was, however, read by at least 200 people in Canada.

Mr Goldhar commenced a defamation action in Ontario against Haaretz, its former sports editor and the author of the article. The news organisation brought an application (motion) to stay the defamation claim, arguing that the Ontario court lacked jurisdiction to hear it or, alternatively, that Israel was a clearly more appropriate forum.

The judge on the motion held that Ontario did have jurisdiction over the claim and that Israel was not a clearly more appropriate forum. A majority of the Ontario Court of Appeal upheld the judge’s decision. Haaretz appealed to the Canadian Supreme Court.

Issues for the Canadian Supreme Court

Jurisdiction in Internet libel claims

In Canada, the courts assume jurisdiction where there is “a real and substantial connection… between the forum, the subject matter of the litigation and the defendant” (Club Resorts Ltd v Van Breda 2012 SCC 17 [99]). This is intended to ensure that claims are not instigated in a jurisdiction that has little or no connection with the parties or their dealings (Van Breda [26]).

In deciding whether to assume jurisdiction, the courts consider certain factors which are presumed to establish a real and substantial connection. One such factor is the place where a tort is committed. In Canada, defamation crystallises when defamatory words are “published, that is… communicated to at least one person other than the plaintiff” (Crookes v Newton 2011 SCC 47 [1]). This raises an issue in respect of Internet libel claims: should the courts presume jurisdiction in the place where allegedly defamatory words are downloaded from the Internet?

Forum non conveniens

Even if jurisdiction is established, a court can go on to consider whether the case has been brought in the appropriate forum. The doctrine of forum non conveniens permits a court to decline to exercise jurisdiction when the comparative convenience or expense to the parties and witnesses calls for the case to be adjudicated elsewhere. This aims to achieve fairness and the efficient resolution of disputes.

The parties’ submissions

On 29 November 2017, the Supreme Court heard Haaretz’s motion to stay Mr Goldhar’s claim in Canada on the grounds that the Ontario court lacked jurisdiction or alternatively did not constitute the forum conveniens.

Haaretz, represented in court by Paul Schabas, submitted that there was no real and substantial connection between the subject matter of the claim and Ontario. It argued that the judge and appellate majority had erroneously disregarded the lack of substantial publication and harm to reputation in Ontario. Further, Haaretz raised free speech concerns: if jurisdiction were presumed in Internet libel cases, the fact that Internet publications can occur anywhere increased the threat of suit in far-flung locations, which risked chilling free expression.

Mr Goldhar, represented in court by William C. McDowell and Julian Porter QC, submitted that the court should not create an exception to the presumption of jurisdiction in Internet libel claims. Mr Goldhar argued that the subject matter of the article extended beyond his management of the Israeli football team and impinged upon his business conduct in Canada. Counsel for Mr Goldhar stressed the importance of his being able to vindicate his reputation.

On forum non conveniens, Haaretz argued that the balance of convenience to the parties and witnesses “overwhelmingly” favoured Israel as the forum conveniens. All of the appellants and most witnesses were in Israel (none were in Canada). Further, Mr Goldhar maintained a residence in Israel. The news organisation posited that “a lengthy libel trial thousands of miles from Israel” would put it under “huge strain”.

In response, Mr Goldhar submitted, in line with the motion judge’s conclusion, that fairness warranted allowing him to defend his reputation in Ontario, where he lived and worked. Further, he argued, there were adequate mechanisms (such as videoconferencing) to obtain evidence from Israeli witnesses for use at trial in Ontario.

On conclusion of the hearing, the Canadian Supreme Court reserved its judgment.

Comment

Haaretz’s motion demonstrates how the reach of the Internet and the capacity for ubiquitous publication create novel questions concerning the boundaries of libel. For publishers, the case raises the spectre of ‘libel tourism’, also known as ‘forum shopping’: where a claimant chooses to sue in a jurisdiction where there may be only a tenuous link to the subject matter of the claim, but which they consider provides the greatest strategic advantage in litigation.

In England and Wales, section 9 of the Defamation Act 2013 provides that a court does not have jurisdiction to hear an action against a person not domiciled in the UK, EU or a Lugano Convention state “unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement”.

The Explanatory Notes to section 9 confirm that it is designed to address “libel tourism… the problem of courts readily accepting jurisdiction simply because a claimant frames their claim so as to focus on damage” sustained in that jurisdiction. Forum shopping is clearly of significant concern to libel defendants, as this legislation and the arguments advanced by Haaretz in the Canadian Supreme Court demonstrate.

Jurisdiction and forum are important threshold questions in libel proceedings. The value of protecting reputation endorses a broad interpretation of jurisdiction and forum conveniens. But the potential chilling effect of ‘libel tourism’ on journalistic expression may give adjudicators pause. The Canadian Supreme Court must now grapple with these competing interests. It will be very interesting to see how it strikes the balance.

A webcast of the Canadian Supreme Court hearing can be viewed here and the parties’ skeleton arguments (factums) are available to read here.

Natasha Holcroft-Emmess is a trainee barrister at Matrix Chambers.