Supreme Court makes a statement (or five) about defamation on the internet and where to sue

So a HUGELY important internet law case came out of the Supreme Court of Canada [/checks watch] almost 3 months ago now. Hmmm. I seemed to have taken the summer off. It was just too darn hot and humid for blogging! But school starts next week (hello McGill LAWG 534 readers!) so I better get my ass back in scholastic mode.

More importantly (and truthfully), I have been dreading writing about this case, even though it’s kinda interesting, and it’s my job to write about these things, and it’s my job to understand these things so I can teach them to the youths. Lemme explain.

So the case is Haaretz.com v. Goldhar. It’s an online defamation case, which I write about a lot. It’s a Supreme Court internet law case, which I always write about. And there is even some sports thrown in! So I certainly have to write about it. But, ugh. There are FIVE SEPARATE DECISIONS IN THERE. FIVE! CINQ!! 五 !!!!!

OK really lemme explain, though I am sure I have explained this before. A court case can either be “won” or “lost”. These are legal terms. Now, at the Supreme Court, there are 9 judges. So the overall court will say that someone “won”, when 5+ judges agree on who “wins”. But different judges may think there should be different reasons for why one side “won”. And they can write what is called a “concurring opinion” to explain their own reasons for the winner. And some other judges may think the party should have “lost”, and will write an opinion (a “dissenting opinion”) to say why they think that is. In theory, you can have up to 9 opinions. In practice, 2 or 3 is usual. 5 is not. So I have to read them all. Blech. See why I have been putting this off?

Let’s go to the facts

Oh hey, “what’s this case about” you are asking yourself (also asking when will Allen STFU with his complaining already). It’s pretty simple, actually, as far as facts go. Goldhar is a Canadian living in Canada, though he hangs out in Israel a lot. He’s a business guy, who owns an Israeli soccer team, Maccabi Tel Aviv.  In November 2011, Haaretz, which is the oldest English-language paper in Israel, published a story, in English and Hebrew, in print and on the internet, which Goldhar says was defamation (technically “libel”, which is written defamation). Here is some of what was written in the article:

Goldhar’s management model was imported directly from his main business interest — a partnership with Wal-Mart to operate shopping centers in Canada.

Within the club, however, there are those who believe that Goldhar’s managerial culture is based on overconcentration bordering on megalomania, penny-pinching and a lack of long-term planning.

Meh, that doesn’t seem so bad to me. I’ve said way worse on the internet about the Montreal Canadiens management. BUT! Whether or not this is defamation is not the point of the case.

What is the point of the case Allen?

The point of the case is simple – where should Goldhar be able to sue? You see, he sued in Ontario where he lives, and where plenty of Canadians in his company and elsewhere read the online story. Haaretz said, whoa whoa, if he wants to sue us he should be suing us in Israel, and asked the lower court to determine that, in a motion. But Goldhar said “I won’t sue you for any damages to my reputation in Israel, only Canada, and I’ll pay for all of you to come here and get sued! I’ll pay for the witnesses to come too!” The motion judge liked that, and said ok you can sue here. The Ontario Court of Appeal said ok too, however that was a 2-1 vote. Haaretz wasn’t happy, and got the appeal to the Supreme Court, and here we go about to read five judgments. Oh, and get ready for some Latin!

Latin 101

Actually let’s start with the Latin, because it will be all over the five judgments. When deciding where is the right place to sue, you have to answer two questions. The first one – is there jurisdiction simpliciter? What that means is that is there should be some sort of legal basis for suing in one place. There should be, according to Canadian law, a “real and substantial connection” to Place 1. The second question is forum non conveniens. If you say, ok, sure, there is a legal basis to sue in that Place 1 (a “forum”), but maybe there is a better place to sue? I.e., it would be more convenient and more appropriate to sue in Place 2, so the lawsuit should happen there, and we won’t let the lawsuit continue in Place 1, because then there would just be lawsuits everywhere and we can’t have that. You with me so far? If so, you have just passed Private International Law for 3 credits! Mazel tov! Let’s go to the judgments.

Judgment 1: Justices Côté (who wrote it), Brown and Rowe (the “main” one, such as it is)

Spoiler alert – they conclude that both the motion judge and the Court of Appeal were wrong. To establish jurisdiction simpliciter, you should look at where the tort happened, or as we would say in Latin (sorry there’s more!) – locus delicti. Where does the tort of defamation happen? The Court summarizes:

The tort of defamation, which is a tort of strict liability, is committed where material has been “communicated” to, that is, conveyed to and received by, at least one person other than the plaintiff(…) In the case of Internet communications, the publication of defamatory statements occurs when they are read or downloaded by the recipient

Ontario residents read and downloaded the story, so there is jurisdiction simpliciter. No problem there. There is also a second part of this question. Sure, we have presumed this simple jurisdiction, but the internet is everywhere! You could sue anywhere! So the person fighting this might be able to “rebut the presumption” that there is jurisdiction, if the connection is really fucking weak. That’s important:

The ability to rebut the presumption of jurisdiction where there is only a weak relationship between the subject matter of the litigation and the forum serves as an important check on jurisdiction. A careful examination of this question is therefore of particular importance in Internet defamation cases, where a presumptive connecting factor can easily be established.

But Goldhar fucking lives here! He has businesses here! It’s not a weak relationship to Ontario at all, and the presumption is not rebutted.

The problem here is with the forum non conveniens (or “forum noncon” as I like to shorthand it). Let the Court better explain the Latin than I did:

the burden is on the defendant to satisfy the motion judge that the alternative forum is “clearly more appropriate” by establishing that it would be fairer and more efficient to proceed in that forum

Meh, I did better job. ANYWAY, when doing a forum noncon analysis, the judge looks at the facts. When a lower court examines the facts and makes a conclusion, the higher courts (like the Supreme Court) should give deference to the lower judge’s decision. But they can still stick their nose in! Here:

As the forum non conveniens analysis is inherently factual in nature, courts of appeal should not normally interfere with a motion judge’s factual findings. That being said, there are limits to deference (…) Where the motion judge has “erred in principle, misapprehended or failed to take account of material evidence, or reached an unreasonable decision”, courts of appeal may intervene.

Oh and does this Court intervene! Justice Côté whips out a long list of errors the motion judge made. With bullet points! She then goes through the forum noncon analysis herself. The forum noncon analysis involves looking at 6 factors. The analysis covers like 20-30 paragraphs, so I am not going to dive into it. Suffice it to say, the motions judge made many mistakes. My favourite is the part where the judge liked the bit where Goldhar promised to pay all the expenses for the traveling Israelis. Justice Côté calls BS on that:

(that) would allow a wealthy plaintiff to sway the forum non conveniens analysis, which would be inimical to the foundational principles of fairness and efficiency underlying this doctrine.

Take that, rich person! Justice Côté also was not too pleased with the idea that Goldhar’s lawsuit was only about his reputation in Canada. She finds that was a load of crap (I’m paraphrasing). His lawsuit itself talks about his reputation in Israel FFS! Anyway, here, the Court summarizes the 6 forum noncon factors:

(1) Comparative Convenience and Expense for the Parties favours Israel;
(2) Comparative Convenience and Expense for the Witnesses heavily favours Israel;
(3) Loss of Legitimate Juridical Advantage, while favouring Ontario, should not weigh heavily in the analysis;
(4) Fairness favours Israel;
(5) Enforcement slightly favours Israel; and
(6) Applicable law, while favouring Ontario, should be given little weight.

And concludes:

Haaretz has established that holding a trial in Israel would be fairer and more efficient. Israel is clearly the more appropriate forum.

And thus allows Haaretz’ appeal, and the lawsuit in Ontario should stop. So what have we learned? That we still have 4 judgments to go.

Judgment 2: Justice Karakatsanis (concurring)

Agrees with Côté that Israel is a better forum and allows the appeal. He just has a couple of minor disagreements about some of her points in the forum noncon analysis, but not enough to disagree on the result. Well that one was easy!

Judgment 3: Justice Abella (concurring)

Also agrees with the result and would allow the appeal. But has a different reason, or at least her reasoning stresses different things. And there is much more Latin. Better go back to Latin class before we proceed.

Latin 201

Lex loci delicti is such an important Latin phrase it has its own Wikipedia entry. It is the legal principle that states that you should apply the law of the place where the tort happened. This is an old timey rule from Private International Law that you got 3 credits for earlier. Been around for ages. This was discussed in Justice Côté’s decision as part of her factor #6 (Applicable Law) analysis. I ignored it at the time because it was less relevant to her as she kind of blew it off (“this factor should be given little weight in the ultimate balancing”), but it is about to blow up big time. Anyway, lex loci delicti distinguishes itself from lex fori, the “law of the forum”, which states you should apply the law of the, uh, forum, where the lawsuit is happening. The principle of lex loci delicti (“LLD” from here on in as I will not be typing that for the rest of this post) was confirmed by the Supreme Court in the well-known (well, to lawyers at least) case of Tolofsen v. Jensen. OK enough dead language class, let’s go back to the judgment.

Judgment 3: Justice Abella (concurring) (cont.)

You see, Haaretz wants the Court to do something about this LLD thing:

(Haaretz) argued that this case demonstrates why the standard approach to choice of law — as well as to jurisdiction — does not adequately respond to the unique issues and challenges raised by Internet defamation. It has, as a result, urged us to modify the test for choice of law and jurisdiction

Justice Abella says sure, what they hell:

Since the very framework and almost all subsequent modifications have come from the courts, it is appropriate to respond positively to the invitation.

But why is this important? It’s because the law that would apply is a factor in the forum noncon analysis, or as Justice Abella says “whether another forum is clearly more appropriate depends, in part, on the law to be applied.” So as we have seen, the current rule for defamation would state that the Ontario law would apply, because it was downloaded, i.e. “published” there. But Justice Abella would change the rule:

I agree that the standard framework for choice of law should be modified in a way that incorporates “most substantial harm to reputation”. This new approach would displace the law of the place of publication of the defamation with the law of the place with the most significant connection to the tort. In the case of Internet defamation, that will be the place where the plaintiff suffered the greatest harm to his or her reputation.

This is a pretty good idea. Since the publication rule for the internet would mean that pretty much any law could apply, this would be better, especially as to defamation. As Justice Abella states – “adopting ‘most substantial harm’ for choice of law would ensure that the choice of law rule reflects what is at the core of the tort of defamation — protection of reputation”. She goes on and on about why this would be a good thing. She then goes back and starts doing her own analysis about jurisdiction simpliciter and forum noncon. If you think I am summarizing that on the day before a long weekend, well, you don’t know me. The only important point is that because of her brand new “Most substantial harm” test, Israeli law should apply, because most of the sh*t in the article was about what he did in Israel. And like 70,000 people read it in Israel compared to 200-300 in Ontario. So because Israeli law would apply, this makes Israel a clearly more appropriate forum (among other forum noncon factors) and thus she agrees with Justice Côté that that the appeal should be allowed. Moving on.

Judgment 4: Justice Wagner (concurring)

I have read his judgment five times. He agrees with everyone so far that the appeal should be allowed because Israel is the more appropriate forum (“Israel is the ‘clearly more appropriate’ forum. Accordingly, I would allow the appeal”). He agrees with Justice Abella that the test for applicable law in internet defamation cases should be modified from LLD to this “most substantial harm” business (“For substantially the reasons given by my colleague Abella J., I agree that this Court should make such a modification to the choice of law rule in the specific context of Internet defamation”). I cannot figure out why he wrote this. Let’s move on!

Judgment 5: Justices McLachlin, Moldaver and Gascon (dissenting)

And finally, a dissent! Nice to see retiring Chief Justice McLachlin go out with a bang. We’re talking almost 100 paragraphs of dissent. Will I go into detail? Hmm, let’s see if it’s interesting.

[/reads dissent]

It is not interesting. They conclude right off the top:

this case boils down to a single question. When a Canadian citizen is allegedly defamed for his Canadian business practices — in an article published online in his home province by a foreign newspaper — is he entitled to vindicate his reputation in the courts of the province where he lives and maintains his business, and where the sting of the article’s comments is felt? The answer of the motion judge and of the majority in the Court of Appeal was yes. We agree

Sure, I agree too. BUT. BUT. But… Israel is a better place (imho). That’s the whole point of forum non con! Why do these three just ignore forum noncon? I frankly am at a bit of a loss. Let’s start with their very clear summary of their 100 paragraphs:

In the first part, we explain why the test for jurisdiction simpliciter is met here, and how the current rules that govern its application accommodate multijurisdictional defamation cases, with no need to apply a robust review at the forum non conveniens stage. In the second part, we explain why the high threshold set by the “clearly more appropriate” test is not met in this case, and the reasons why this Court should not adopt a place of most substantial harm rule for the applicable law in multijurisdictional defamation cases.

They then go on… to sort of do this. They spend some time bitching about Justice Côté who was wrong (in their opinion) when she listed a bunch of errors the motions judge made. They say Justice Côté should have just let the motions judge analysis of the evidence go, because she was the one who heard it, goddamit! Okaaayy. They then go on and on and on to the point of putting me to sleep. Want to know how much yada yada they have? Here’s one of their headings:

The Scottish and English Roots of the “Clearly More Appropriate” Test

Yeesh. Anyway, they discuss the forum noncon factors, and head that up with this:

We will discuss these factors in turn and explain why they do not meet the test of showing that Israel is a clearly more appropriate forum than Ontario.

Yeah, whatever, you’re wrong. And more importantly for our present purposes, they say:

Despite the views of the dissenting judge in the Court of Appeal and of our colleagues Justices Abella and Wagner, we consider it both unwise and unnecessary for this Court to adopt the place of most substantial harm rule for the applicable law in place of lex loci delicti.

Yeah well whatever, I think it was a damn good idea! And so did Australia, which adopted the rule. But Canada will not be swayed by those Aussies, no sirree mate!

Anyway, these three go on a very long route to say sure, Ontario is fine. Sure, maybe Israel is a good place to hear the case, but it is not “clearly” a more appropriate forum. I am not explaining their reasoning because: (1) they are the minority dissent and thus their judgment is useless;  (2) they are wrong; and (3) we’re all tired at this point.

Superterriffic Funtime Analysis Hour

I have no fucking clue. In all honesty, with 5 judgments, and the fact that the three main judges who allowed the appeal did not adopt the “greatest harm” rule aka the “most substantial harm” test, I would argue that this case does… nothing. 5 judgments and we’ve got… nothing. The law doesn’t change at all. In the end, it was just a straightforward forum noncon analysis where the lower judge made some mistakes and the higher judges fixed it. Okay then.