In a decision released last week, Giustra v. Twitter, Inc.1, the Supreme Court of British Columbia dismissed an application by Twitter challenging the Court’s jurisdiction to hear a defamation action relating to tweets that billionaire plaintiff Frank Giustra alleged were defamatory. Underlying Mr. Giustra’s claim is an unsettled question in Canadian law: should an unmoderated social media platform be held liable for defamatory content published by others? In dismissing Twitter’s jurisdictional challenge, the Court opened the door to the possibility that the merits of this question will now be decided in Canada.
What you need to know
Twitter challenges jurisdiction. Twitter argued that the claim should proceed in California. Mr. Giustra resisted the application, which if granted, would have effectively ended his lawsuit. If Mr. Giustra was required to pursue his claim in California, Twitter would have no liability as a result of the U.S. Constitution’s guarantee of free speech as well as section 230 of the U.S. Communications Decency Act.
The Court’s response. The Court held that because the allegedly defamatory tweets were viewed, downloaded and accessed in British Columbia, the tort of defamation had occurred in British Columbia and thus was within the B.C. court’s jurisdiction. It was also not unreasonable for Twitter to expect to defend the action in B.C.
The Court further held that California was not a more convenient forum for the action since all parties agreed that, were Mr. Giustra’s action to proceed in California, it would be dismissed. Under the First Amendment and section 230 of the United States’ Communications Decency Act of 1996, Twitter is immune from liability for tort claims for the dissemination of content from third-party users.
What’s next. The Court expressly declined to rule on the issue of whether Twitter is legally responsible for the content of tweets. However, should this case proceed to a resolution on the merits, it will be the first time a Canadian court weighs in on a social media company’s liability for third-party content posted on an unmoderated platform.
Frank Giustra sued Twitter for defamation in relation to tweets related to the debunked #pizzagate conspiracy which alleges, among other things, that powerful individuals such as Bill Clinton, George Soros, and Mr. Giustra are participants in a worldwide child trafficking ring. Rather than pursuing the authors of the tweets, Mr. Giustra, a resident of British Columbia, commenced a defamation action solely against Twitter seeking damages for reputational harm caused by more than a hundred tweets in the Supreme Court of British Columbia.
Before defending the claim on the merits, Twitter brought an application claiming that the B.C. court had no jurisdiction to hear the case and even if jurisdiction existed, the Court should decline to exercise it because California was a more convenient forum.
The evidence in the record included that Twitter is headquartered in San Francisco and that while it has a Canadian subsidiary located in Toronto (Twitter Canada ULC), Twitter has no employees or assets in British Columbia or Canada. There was no evidence before the court on how many people in B.C. accessed the tweets in question however Twitter estimated that it had approximately 500,000 users in the province.
At the first stage of the analysis, the Court had to determine whether it had jurisdiction simpliciter (referred to as territorial competence in British Columbia) to hear the dispute under the Court Jurisdiction and Proceedings Transfer Act (CJPTA)2. Under the CJPTA, territorial competence exists if there is a real and substantial connection between British Columbia and the facts on which the proceeding against a person is based. A real and substantial connection can be established where the proceedings concern a tort committed in British Columbia. In resolving this question, the Court relied upon the Supreme Court of Canada’s decision in Haaretz.com v. Goldhar3, which said that defamation takes place where the defamatory statements are read, accessed, or downloaded. Twitter did not challenge Mr. Giustra’s allegation that the allegedly defamatory tweets were read by persons in B.C.
Having established that the tort was committed in British Columbia, Twitter had to rebut the presumption of territorial competence. The Court acknowledged the Supreme Court’s guidance in Haaretz.com that courts should consider whether there is only a “weak relationship between the subject matter of the litigation and the forum”4. However, for three reasons, the Court concluded that Twitter had not rebutted the presumption, rejecting Twitter’s argument that it could not be expected to defend actions in any jurisdiction in which an allegedly defamed person has a reputation and in which an offending tweet had been accessed:
First, the law of defamation remains unsettled.
Second, the tweets had been brought to Twitter’s attention by the Plaintiff, including its General Counsel.
Third, the Court relied on Mr. Giustra’s significant reputation in British Columbia and strong ties to the province.
Forum non conveniens
After concluding that it had jurisdiction simpliciter under the CJPTA, the Court considered whether to decline to hear the case because another court is a more appropriate forum. This issue was of particular importance in this case, because if the case had to be brought in the United States, it was not going to get heard. The court therefore acknowledged that the consideration of the usual factors in a forum non conveniens analysis was a little artificial, but went through the analysis to show that the case could be readily heard in British Columbia. It acknowledged that most of the relevant witnesses and documents were in California. However, Twitter failed to demonstrate any significant challenge making these witnesses and documents available for a trial in B.C. Similarly, although Twitter argued it has no assets in Canada, the Court rejected this argument, pointing to Haaretz, which states that enforcement is not a major consideration in defamation actions, since vindicating the plaintiff’s reputation is often the primary concern.
Finally, the Court considered the issue of juridical advantage, considering the immunity provided to Twitter under section 230 of the Communications Decency Act of 19965. As a result, Mr. Giustra would have no cause of action in California for tweets published in B.C. and related to which he suffered harm in B.C. As a result, the Court concluded that Twitter had failed to establish that California was clearly a more appropriate forum.
While the plaintiff in this case has a long way to go in asserting that Twitter is liable for the impugned tweets, the decision signals that Canadian courts will soon have to grapple with social media companies’ liability for defamatory statements posted on unmoderated platforms.
The decision also confirms that parties who have allegations to support a defamation claim may be able to pursue their claims in Canadian courts even in situations where the publisher of the defamatory statements is not located in Canada. As a result, international publishers and foreign-based social media companies may not be able to simply rely on jurisdictional arguments to avoid liability for defamation in Canadian courts.
Finally, there are some questions about whether the protections of the Communications Decency Actwill continue. During the democratic primaries, President Biden told the New York Times that Section 230 should be revoked6. However, since the election, Biden administration has declined to comment on its plans for the law7. In light of recent events in the United States, it is certainly possible that there may be a political push for to strip social media companies of the liability protections they currently enjoy.
1 2021 BCSC 54.
2 S.B.C. 2003, c. 28, [CJPTA]. This legislation was designed to codify the common law on questions of jurisdiction. In provinces without such a piece of legislation, (such as Ontario), the analysis remains governed by the common law. Generally, the leading case on questions of jurisdiction is Club Resorts Ltd. v. Van Breda, 2012 SCC 17.
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