In a decision released last week, Giustra v.
What you need to know
- Twitter challenges jurisdiction. Twitter argued that the claim should proceed in
- 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 inBritish 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, wereMr. Giustra's action to proceed inCalifornia , it would be dismissed. Under the First Amendment and section 230 ofthe 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.
Background
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 asBill Clinton ,George Soros , andMr. Giustra are participants in a worldwide child trafficking ring. Rather than pursuing the authors of the tweets,Mr. Giustra , a resident ofBritish Columbia , commenced a defamation action solely against Twitter seeking damages for reputational harm caused by more than a hundred tweets in theSupreme 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 inToronto (Twitter Canada ULC), Twitter has no employees or assets inBritish Columbia orCanada . 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.Jurisdiction
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 betweenBritish 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 inBritish Columbia . In resolving this question, the Court relied upon theSupreme 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 challengeMr. 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 theSupreme 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.
- The Court further held that
- 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 inBritish 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
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,
Concluding thoughts
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
Finally, there are some questions about whether the protections of the Communications Decency Act will continue. During the democratic primaries,
Footnotes
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
3. 2018 SCC 28, [
4.
5. 47
6. https://www.nytimes.com/interactive/2020/01/17/opinion/joe-biden-nytimes-interview.html?smid=nytcore-ios-share
7. https://www.washingtonpost.com/politics/2021/01/18/biden-section-230/
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