On November 29, 2017, the Supreme Court of Canada will hear the appeal Haaretz.com, et al. v Goldhar. Haaretz.com is an online Israeli publication that published an article about Mr. Goldhar, a Canadian businessman and owner of a Tel Aviv soccer team. Mr. Goldhar filed a defamation action against Haaretz in Ontario. Haaretz has applied for a motion to stay the action on the basis Ontario doesn’t have jurisdiction.
Jurisdiction in an Internet context is an evolving part of the law, and there is little Canadian jurisprudence on the topic. The Haaretz.com appeal could impact how Canadian courts deal with jurisdictional issues the Internet creates.
The Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (“CIPPIC”) acting as an intervener will bring attention to how jurisdiction in Internet defamation cases may create access to justice barriers. CIPPIC submits the Court needs to take a nuanced approach: “The law of jurisdiction over alleged internet libel should ensure access to justice for deserving claimants while limiting forum shopping that favours deep-pocketed parties.”
Earlier this year, in Google Inc v Equustek Solutions Inc, the Supreme Court upheld “a third-party takedown or delisting order with extraterritorial effect.” The Court’s permissive approach to jurisdiction in this decision made Canadian courts attractive to forum shoppers. Plaintiffs with a loose connection to Canada may file claims with Canadian courts to seek an Equustek, or international takedown, order. If forum shopping is not addressed it “may open the door to disorderly misuse and overcrowding of [Canadian] courts.” CIPPIC acknowledges that simply creating a higher threshold to target forum shopping may create barriers to access to justice. Specifically, targets of cyberviolence could be left in a more vulnerable position without the ability to seek legal recourse.
Cyberviolence includes online harassment of women, marginalized groups, and non-consensual sharing of intimate images (revenge porn). This form of harassment is a systemic problem, with serious effects on those targeted. West Coast LEAF discusses how the Internet affects violence:
“While hate speech and violence against women and girls are not new phenomena, the increasing use of web-based platforms to perpetuate such hate means that perpetrators can remain anonymous while widening their audience and impact.”
Despite the prevalence of cyberviolence, the legal landscape to address online violence remains uncertain. CIPPIC notes that the Court’s approach to jurisdiction in Internet defamation must consider these vulnerable plaintiffs.
CIPPIC submits that to address the complex range of plaintiffs in Internet defamation cases, the Court could accept undertakings by parties not to seek an Equustek order. Such an undertaking would indicate the plaintiff is not forum shopping. If a claimant is seeking an Equustek order, CIPPIC argues the Court should take a contextual approach, as some targets of cyberviolence may require an extraterritorial takedown order.
The Haaretz.com judgement could be a seminal decision for those seeking access to justice in Internet harassment and defamation cases.
This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.