Canadian Lawyer with Hilary Young 06 June 2018
In an internet defamation case against Israeli newspaper Haaretz, the Supreme Court of Canada has stayed the proceedings, finding Israel as the more appropriate forum for the suit brought by a Canadian billionaire.
In Haaretz.com v. Goldhar, the court was concerned with the issue of libel tourism, says Hilary Young, associate professor at the University of New Brunswick Faculty of Law.
Libel tourism refers to defamation plaintiffs shopping around the world to find the jurisdiction with laws most beneficial to their case, the internet giving them the ability to sue anywhere the libelous material was accessed.
Young says this decision could reduce the amount of libel tourism.
“Today, we’ve got a little bit more certainty around both the rules of jurisdiction and choice of law,” she says.
While the U.K. has rules making libel tourism more difficult, Young says the court stopped short of changing the rules, meaning there is still a lot of uncertainty for publishers when they are weighing the risk of publishing content, Young says.
Mitchell Goldhar brought the action against Haaretz after a critical story regarding Goldhar’s managing of the soccer club Maccabi Tel Aviv F.C. The 2011 article accused Goldhar of “penny-pinching” and lacking long-term plans for the team.
Goldhar brought action in Ontario alleging damage to his reputation, and the motion judge dismissed Haaretz’s motion that Ontario courts lacked jurisdiction. Ontario’s Court of Appeal dismissed the appeal.
The court’s call on jurisdiction applied two tests: jurisdiction simpliciter and forum non conveniens. The first establishes if a real and substantial connection between the forum and issues dealt within the case exists and, therefore, that court has jurisdiction. The second asks whether that jurisdiction should be ceded for a more appropriate forum in the interest of fairness and efficiency in the trial.
The Supreme Court found the motion judge properly applied the jurisdiction simpliciter test and ruled that an Ontario court had jurisdiction. However, the court found that the judge erred in the forum non conveniensanalysis.
The court states in the decision that Haaretz “would face substantial unfairness and inefficiency if a trial were held in Ontario.”
Young says that it is usually difficult for the defendant to be successful in a forum non conveniens.
“The plaintiff generally gets their forum and here the court is saying ‘no, you have to take a robust approach based on what’s fair and based on what’s efficient’ and here that means a trial in Israel and that I think is pretty unusual,” she says.
The article in question was not distributed for print in Canada, but it was available electronically. According to the decision, 18 of the 22 witnesses Haaretz planned to call lived in Israel and Goldhar regularly visits Israel, whereas “Haaretz has no presence or assets in Ontario,” the decision states.
The case also raised the issue of the chilling effect that arises from suing media for libel.
“Now, with the internet, cash-strapped media organizations do not just have to worry about being sued where they are located but anywhere in the world, Young says. “Not only are you at risk of being sued by your main audience or in the community of your main audience but also potentially anywhere in the world,” she says.