RMRF’s team, led by Matt Woodley and Tess Layton, has successfully argued a significant decision before the BC Supreme Court with potentially worldwide implications, concerning the ability to sue social media companies headquartered in a foreign country.
Under the US Constitution, and several other federal statutes governing speech in the United States, social media companies are protected from liability for defamatory content posted by users on their websites. As a result, individuals subject to defamation on social media can only sue the authors of the defamatory post, and have no recourse against the company operating the social media site itself. In essence, social media companies can publish online with impunity.
The issue of whether social media companies can be held liable in defamation for content created and posted by users under Canadian law remains an open question, but it is one which the BC Supreme Court may be answering in the near future. In Giustra v Twitter Inc., 2021 BCSC 54, the British Columbia Supreme Court held that it has jurisdiction to hear a claim brought by a Canadian resident made against Twitter, a social media giant headquartered in the United States.
The Plaintiff in this case, Frank Giustra, is a well-known Canadian businessman and philanthropist who lives in West Vancouver. Mr. Giustra sued Twitter for defamation arising from a large number of false and defamatory Tweets that implicate him in widely discredited conspiracies, including “Pizzagate” and “QAnon”, and include hate speech and threats of violence against Mr. Giustra and his family.
In an effort to stop this campaign of defamation and to hold Twitter accountable for defamatory content that it publishes worldwide, Mr. Giustra sued Twitter in British Columbia for damages, and also sought a worldwide mandatory injunction against Twitter requiring it to remove the false, defamatory and threatening tweets from its website and to take steps to ensure similar tweets are not published by Twitter in the future.
Twitter brought an application to have the action struck on the basis that the British Columbia courts lack jurisdiction to hear this claim. The Court dismissed Twitter’s application, holding that the BC Supreme Court does have jurisdiction to hear the claim, and California (where Twitter is headquartered) is not a clearly more appropriate forum. The merits of the claim will be decided at a future date.
The first step – jurisdiction simpliciter
In jurisdictional applications of this kind, the plaintiff need not prove any aspect of his claim, and the allegations pled in the Civil Notice of Claim are assumed to be true at this preliminary stage, unless the defendant adduces evidence to rebut that presumption. The Court held that the facts, as pled, were within the BC Court’s jurisdiction, on the basis that:
- Twitter had approximately 500,000 users in British Columbia;
- The defamatory tweets were read by some users within the jurisdiction;
- Mr. Giustra has a well-established reputation in British Columbia, and one of the objectives of the lawsuit was to vindicate his reputation in British Columbia.
Twitter attempted to rebut the presumption of jurisdiction by arguing that, as a worldwide social media company, it cannot be expected to answer defamation claims brought wherever its users happen to be located. While the Court agreed that social media companies “cannot be expected to defend actions in any jurisdiction in which an allegedly defamed person has a reputation and in which the offending tweet has been accessed,” it noted that in this case, Twitter was put on notice of the defamatory publications, and that they pertained to a user domiciled in Canada. While it remains uncertain whether that is sufficient to trigger liability (a question left to be decided at a later date), the Court was satisfied that it could take jurisdiction in this case.
Further, the Court found that the target of the defamatory tweets was not limited to Mr. Giustra’s reputation in a particular jurisdiction outside of Canada, and it was satisfied that the claim was properly brought in British Columbia on the basis of Mr. Giustra’s reputation there. The fact that Mr. Giustra may have an established reputation in other jurisdictions, including California, was insufficient to rebut the presumption that the BC court could take jurisdiction. The Court also found that, while Mr. Giustra did not limit his claim for damages to publications in British Columbia, it was appropriate for a single court to take jurisdiction over all related claims to avoid a multiplicity of proceedings in different jurisdictions, even if that might require the BC court to apply foreign law. Overall, the Court was satisfied that it would not be unfair to Twitter to require it to answer a claim in defamation brought against it in British Columbia.
The next step – forum non conveniens
Moving from jurisdiction simpliciter to the next stage of the jurisdictional analysis, the forum non conveniens test, the Court was required to consider whether there was another forum that is clearly more appropriate, on the basis of:
- the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum,
- the law to be applied to issues in the proceeding,
- the desirability of avoiding multiplicity of legal proceedings,
- the desirability of avoiding conflicting decisions in different courts,
- the enforcement of an eventual judgment, and
- the fair and efficient working of the Canadian legal system as a whole.
In internet defamation cases, the forum non conveniens test is particularly important, as jurisdiction simpliciter will often be easy to establish, but there may be multiple jurisdictions that offer a potentially appropriate forum to try the case. With this in mind, the BC Supreme Court was required to balance a number of factors.
i. Location of witnesses
Twitter argued that it would be calling several witnesses in the action, most of whom are located in California. The court indicated that, as the bulk of these witnesses would be employees or experts hired by Twitter, there should be no issues with their willingness to participate in the trial, and the expense and inconvenience of having them testify in BC should not be overstated – particularly given that Canadian courts have developed the capability to effectively deal with remote witness participation in trials.
ii. Location of documents
The Court placed “little or no weight” on Twitter’s argument that its documents are in California, and noted that with the prevalence of electronic documents, location of the physical documents can no longer be considered a significant factor.
iii. Connection of tweets to USA vs BC
While Twitter argued that the tweets’ subject matter was centered on the United States, the Court found that the tweets impugn Mr. Giustra personally in a way that is not geographically centered, with multiple allegations of pedophilia, as well as tweets referring to Mr. Giustra’s Vancouver-based film company and charitable endeavours.
iv. Enforceability of judgment against Twitter
While the Court highlighted the potential difficulty in enforcing a judgment against Twitter, given the American protections against liability of social media companies, it did not consider this a bar to conducting the action in BC.
v. Applicable law
In the opinion of the Court, in cases of multi-jurisdictional online defamation, the forum court may need to apply the laws of multiple respective jurisdictions to account for the multiple locations where the tort occurs. The application by a Canadian court of American law to publication that occurs in the United States, may negate concerns about applying Canadian law to foreign conduct.
vi. International comity and “juridical advantage”
The issues of international comity and “juridical advantage” – the advantage gained by a party under the laws of a given jurisdiction, as compared to a different jurisdiction – are particularly difficult concepts in the forum conveniens analysis, and cannot be covered in detail here. Suffice to say the Court found that since tweets published in the United States would be dealt with under US law, there was no need to weigh the substantive fairness of US law, and taking jurisdiction of the case would not constitute a breach of international comity.
In conclusion, the Court held that in light of Mr. Giustra’s close connections to British Columbia; the publication of the tweets in British Columbia; their defamation with respect to personal characteristics not confined to a given geographic location; and the Court’s capacity to apply both Canadian and American law depending on the location of the tweets’ publication, it was appropriate for the BC Supreme Court to assume jurisdiction over the matter. While many issues remain to be resolved at trial, the decision represents a significant victory in Mr. Giustra’s effort to hold social media companies accountable for their worldwide publication of defamatory material.