The Ontario Court of Appeal recently released its decision in Goldhar v. Haaretz.com on the issue of whether Ontario was the appropriate jurisdiction to litigate a defamation claim relating to an online publication by an Israeli newspaper that purported to defame Mr. Goldhar, who lives in Toronto but has business connections in Israel.
The majority held that the litigation could proceed in Ontario, as the court had jurisdiction and also that Israel was not a clearly more convenient forum. The majority concluded that, even though Mr. Goldhar was likely more well-known in Israel, and the fact that the facts asserted in the article related to his ownership of a prominent Israeli soccer team, the article had the potential to damage his reputation in Ontario, and the article was read by a number of Ontarians (though only a fraction of the number who read the article in Israel), and therefore, the court had jurisdiction simpliciter to hear the case. The court went on to consider whether Israel was clearly a more appropriate venue, by considering the facts in dispute, the location of witnesses and evidence, and other surrounding circumstances. The majority ultimately concluded that the newspaper could reasonably have expected Ontario to be a venue Mr. Goldhar might elect to commence litigation, as it is where he primarily resides and does business, and the other surrounding factors did not sufficiently prefer Israel over Ontario to supersede their jurisdiction.
The dissenting judge disagreed, and considered the inherent difficulty in determining an appropriate jurisdiction in the realm of online defamation. While the judge agreed that the test for jurisdiction simpliciter was met, she noted that because online defamation can so easily satisfy a jurisdiction hurdle in almost any jurisdiction, courts should more robustly apply forum non conveniens rules to minimize the real risk of “forum shopping” a claim in a jurisdiction that is legally or practically advantageous for the plaintiff but which does not in the ordinary course have a meaningful connection to the proceeding. In this case, the dissenting judge held that the proceeding should be stayed in favour of Israel on the basis of forum non conveniens.
Though the judge considered numerous factors under this analysis, she was particularly of the view that the appropriate law for multi-jurisdictional online defamation actions should be the law where the most substantial harm to reputation was incurred, not necessarily the law of each jurisdiction where it is alleged that reputation in that jurisdiction was damaged. According to the dissent, to hold otherwise is not in accordance with the principles of comity and the court’s desire to avoid a multiplicity of potentially contradictory proceedings. As the most substantial harm to Mr. Goldhar was believed to be in Israel, the dissenting judge would have stayed the action in Ontario in favour of litigation in Israel.
This decision, and the dissent in particular, shines an important spotlight on the inherent issue with multi-jurisdictional claims, particularly in the area of online defamation. While courts and laws are subject to clear geopolitical boundaries, the Internet is not, and torts committed using the Internet inherently have the potential to be litigated almost anywhere on the planet, subject to a court’s inherent power to control its own proceedings and refuse to hear cases where the jurisdiction chosen does not materially relate to the issues in dispute.
If you are involved in a defamation dispute, contact us for an initial consultation.
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