A recent Ontario Superior Court of Justice decision(1) cautions publishers of online content in non-Canadian jurisdictions that they may have to defend defamation proceedings in Canadian courts.
In November 2011 Israel's oldest daily newspaper, Haaretz, published an article about Mitchell Goldhar, a successful Canadian businessman and owner of the most decorated football club in Israel, Maccabi Tel Aviv Football Club. The article was critical of Goldhar.
Although a print version was not available in Canada, Haaretz posted the article online in both Hebrew and English.(2) The article attracted 216 unique views from users located in Canada, although more than 216 Canadians likely read the article.(3)
Shortly after the article was published, Goldhar brought an action in the Ontario Superior Court of Justice against Haaretz, alleging that it was libellous. In response, Haaretz brought a motion to stay or dismiss the action on three grounds:
- The court lacked jurisdiction;
- Ontario was not the most convenient forum to hear the action (forum non conveniens); and
- The action was an abuse of process.
The court allowed Goldhar to continue his action in Ontario, ordering that
- Goldhar's damages would be limited to damages to reputational harm suffered within Canada; and
- Goldhar would be required to pay travel and accommodation expenses for Haaretz's witnesses.(4)
The court applied the framework established by the Supreme Court of Canada in Club Resorts Ltd v Van Breda(5) for determining whether a court should assume jurisdiction over a foreign defendant:
- Did the Ontario court have jurisdiction simpliciter (ie, the ability to assert jurisdiction over an out-of-province defendant) over the defendant?
- If the Ontario court had jurisdiction simpliciter, should it nevertheless exercise its discretion to stay the action if another forum was clearly more appropriate for hearing the action?(6)
In its jurisdiction simpliciter analysis, the court first acknowledged a presumptive connecting factor between the subject matter of the litigation and the proposed forum – namely, that the alleged tort of defamation had been committed in Ontario.(7) With a presumptive connecting factor in place, the burden shifted to Haaretz to prove that the connecting factor did not point to any real relationship between the subject matter of the litigation and Ontario. Citing Éditions Écosociété Inc v Banro Corp,(8) in which the Supreme Court held that even a small amount of publication in the proposed forum was enough to establish jurisdiction simpliciter, the court was not persuaded by Haaretz's submission that, since a far greater number of people had read the article in Israel than in Ontario, there was no substantive connection between the alleged defamation and Ontario.(9)
After concluding that it had jurisdiction simpliciter, the court turned to Haaretz's submissions on forum non conveniens ('inconvenient forum'). To persuade the court to stay the action, Haaretz was required to demonstrate that another jurisdiction (Israel) was the clearly more appropriate forum. In refusing to grant a stay, the court considered a number of factors:
- Both the location of witnesses and the location of the parties (in light of the fact that Goldhar regularly visited Israel) favoured the action being brought in Israel.(10)
- Applicable law (ie, the law of the place where the tort occurred) favoured the action being brought in Ontario.(11)
- Loss of juridical advantage to the plaintiff favoured the action being heard in Ontario. Although an expert witness for Haaretz testified that there was a more plaintiff-friendly libel regime in Israel,(12) Goldhar's counsel pointed to the availability of jury trials and the lack of a public figure defence in Ontario as juridical advantages that would be surrendered should the action be tried in Israel.(13) In determining that loss of juridical advantage favoured the action continuing in Ontario, the court refused to engage in an analysis of the relative juridical advantages of having the action heard in Ontario versus Israel: a plaintiff need show that there is only a loss of juridical advantage, not a net loss.(14)
- Recognising the historical importance of reputation in Canadian defamation law, fairness to the parties favoured the trial of the action in Ontario.(15)
In the internet era, anyone can – within minutes – distribute written material to a global audience. The opportunities presented by this new communication technology are often matched by attendant risks. Goldhar v Haaretz.com demonstrates that Canadian courts will not hesitate to require international publishers of online content to defend actions brought in Canada. Before publishing potentially libellous material, prudent publishers should note the commonsense approach adopted in this case:
"The defendants published an article about a Canadian businessman's ownership of an Israeli soccer team that impugned his reputation. There is no surprise or injustice to the plaintiff's attempt to vindicate his reputation in Ontario, where he lives and works."(16)
For further information on this topic please contact Michael D Schafler or Thomas Wilson at Dentons Canada LLP by telephone (+1 416 863 4511) or email (firstname.lastname@example.org or email@example.com). The Dentons website can be accessed at www.dentons.com.
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