Mark Kohras is a JD candidate at Osgoode Hall Law School.
On March 3 2011, a ruling was made in a highly anticipated French libel case. The case, involving a defamation claim for posting a critical book review on the internet, was highly anticipated for two reasons. First, because of the potential chilling effect on book reviews. Second, because of an issue that is becoming increasingly common regarding claims involving the internet: forum shopping.
The case involved a book review printed by the European Journal of International Law (EJIL) on its book review site www.globallawbooks.com of a book on the International Court of Justice. The author of the book in question, Dr. Karin Calvo-Goller, claimed that the review (which was critical of the book) was libellous and demanded its removal. The editor of the EJIL, Prof. Joseph Weiler, did not believe that the review was libellous and refused. What happened next is the source of much contention; Dr. Karin Calvo-Goller initiated a complaint under the French legal system for criminal defamation.
In any internet defamation case, the choice of venue is always an issue. This is the case because, technically, the internet is everywhere. In the case of defamation, if a libellous statement is posted on the internet, it can be read from any computer in the world with internet access. So the question becomes, where does the defamation take place?
In the case in question, the author of the book holds dual citizenship in Israel and France. However, she lives and works in Israel. The book in question was published in English, by a Dutch publishing company. The book review was written in English by a German professor and published by an American professor on an American website.
Whether a court will exercise jurisdiction is usually based on a test determining if there is some kind of substantial connection to the territory in question. However, as demonstrated above, it is possible to have connections to multiple territories. This has led to a practice called forum shopping.
Forum shopping is the practice of a plaintiff strategically choosing the jurisdiction they initiate proceedings in. This can be done for various reasons, including convenience to the plaintiff, lower costs to litigate, jurisdictions with more favourable laws, inconvenience to the defendant, higher costs to the defendant, etc. Once a judgment is rendered, the plaintiff then applies to the local jurisdiction where the defendant’s assets are located for enforcement of the award (such was the case in the record-setting Facebook spam award).
In the case of Dr. Calvo-Goller, the decision to commence proceedings in France was questionable considering the only connection to France (aside from the global connection of the internet) seemed to be that she held French citizenship (yet was not resident in France). It was even stated in the ruling that she admitted the choice of venue was “for economic reasons – the cost of the procedure would have been higher for her – and also for reasons of preference, as she considered that only French law offered her a chance of being successful.”
According to the judge, “Karine Calvo-Goller has thus acknowledged that she practised what is called forum shopping, in other words looking around the world for the judicial system which seems to be the most favourable to the claim made by the person taking the initiative of applying to a court, and placing such person’s adversary, for legal and also practical reasons due to the geographic or cultural distance, in the more disadvantageous situation”
The French court eventually ruled that it did not have jurisdiction to hear the case and fined Dr. Calvo-Goller €8,000 for what they called an “abuse of process”. The court also clarified that, in any case, the remarks of the book review were not defamatory under French law and did not go “beyond the limits of free criticism to which any author of an intellectual work is exposed.”
This ruling is a win for both book reviewers and anyone who uses the internet, both because it clarifies that academic criticism is not defamation (even under French law, which takes defamation very seriously) and because it assures internet users that there is a limit to when a court will exercise jurisdiction on the internet. It also shows that courts might be becoming less tolerant to forum shoppers with regard to internet claims. Hopefully this is a trend that will continue.
Note: The translation of the French ruling was provided by the defendant in this case. The full text is available here.