Canadian Court Finds Jurisdiction Over Twitter

Twitter has received a lot of public attention recently, most notably for banning the President of the United States from using the platform. 

A new decision by the British Columbia Supreme Court in Giustra v. Twitter, Inc. concluded that the court has jurisdiction simpliciter over the platform, and that the Canadian courts were a forum conviens for the purposes of litigation.

The plaintiff had strong connections to both British Columbia and California, the latter also being the location of the defendant and all of its documents.

The allegedly defamatory content related to various conspiracies touted by the far-right, also known as “pizza gate.” They purported to connect the businessman, mining financier and global philanthropist to former U.S. President Bill Clinton, and even a supposed pedophile ring. It could be described as some of the worst type of content that can be found on Twitter.

Although the tweets were read in Canada and the U.S., they were probably read all across the world. Justice Myers started by stating,

[1] Tweets span international boundaries, making for jurisdictional issues with respect to the adjudication of legal claims relating to them.

Although the decision does not make any findings of the merits of the case, it is important because in the U.S. Section 230 of the Communications Decency Act (CDA), which was passed in 1996, provides complete immunity to such communications,

(1)Treatment of publisher or speaker

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Although created before the advent of social media, these provisions offer especially broad protection for speech that has allowed for some of the most objectionable forms of expression to flourish. The rationale for banning the President’s account, which was published on Jan. 8, 2021, had more to do with the private company’s own internal rules and public interest framework.

This decision means that social media platforms can no longer rely on Section 230 of the CDA, and run the risk of defamation lawsuits occurring on this side of the border instead.

At this time, there is no equivalent legislation in Canada to govern this type of online expression, meaning that this case will reveal novel findings of law if it proceeds to trial. Both parties agreed that the defendant would escape liability in the U.S., but the plaintiff used this to demonstrate there was no alternative forum at all.

The Court in Crookes reinterpreted the notion of publication online, finding that a deliberate act can include the failure to remove defamatory content once actual or constructive knowledge exists,

[59] A more nuanced approach to revising the publication rule, and one that can be applied effectively to new media, would be for the Court to hold that in Canadian law, a reference to defamatory content can satisfy the requirements of the first component of publication if it makes the defamatory information readily available to a third party in a comprehensible form. In addition, the Court should make it clear that not every act, but only deliberate acts, can lead to liability for defamation.

[92] …In my view, the proper approach is (1) to explicitly recognize the requirement of a deliberate act as part of the Canadian common law publication rule, and (2) to continue developing the rule incrementally in order to circumscribe the manner in which a deliberate act must make defamatory information available if it is to result in a finding of publication.

[93] More specifically, only where the plaintiff can establish on a balance of probabilities that the defendant performed a deliberate act that made defamatory information readily available to a third party in a comprehensible form will the requirements of the first component of publication be satisfied. Of course, before the court will make a finding of publication, the plaintiff must also satisfy the requirements of the second component of publication on a balance of probabilities, namely, that the “defamatory matter [was] brought by the defendant or his agent to the knowledge and understanding of some person other than the plaintiff” (McNichol, at p. 704).

[emphasis in the original]

The involvement of an intermediary like Twitter, which might be treated similar to a printing press that does not endorse the content, may give rise to the defence of innocent dissemination. The courts in B.C. have previously explored this issue in Carter v. B.C. Federation of Foster Parents AssociationWeaver v. Corcoran and Pritchard v Van Nes.

Emily B Laidlaw and Hilary Young note that these cases have largely rejected the previous case law around innocent dissemination and publication by omission, effectively inferring an endorsement of content where there is knowledge and control.

The Ontario Superior Court of Justice differentiated these different approaches to intermediary liability in Baglow v. Smith,

[187] In the course of its reasons the Court of Appeal [in Carter] noted that “legislatures may yet have to come to grips with publication issues thrown up by the new development of widespread Internet publication, to date the issue has not been legislatively addressed…” (paragraph 20). While the Fourniers have asked this Court to consider the above-noted statutory provisions with respect to publication, I am mindful that the legislators in this country have not chosen to enact such legislative schemes. It is the common law of defamation and Charter values which must be considered.

[188] The Fourniers and the CCLA essentially submit that the reasoning in Crookes is applicable to the case hand. However in my view the circumstances are qualitatively different. To compare Crookes to this case is, in my view, to compare apples to oranges.

[189] In Crookes, the Supreme Court looked at whether a simple reference like a hyperlink, without more, to defamatory information is the kind of act that can constitute publication…
[196] In my view the reasoning in Crookes is not applicable to the circumstances that present in this case. Moreover I am mindful, as indicated in the Supreme Court of Canada case law set out above, that the law of defamation involves a delicate balance between two fundamental values: the worth and value of an individual’s reputation, which the law of defamation seeks to protect, and the freedom of expression, which the law of defamation inherently limits. The evidence reveals in this case that almost all of the individuals who post or comment on Free Dominion do so anonymously. To adopt the position of the defendants would leave potential plaintiffs with little ability to correct reputational damage and would impair that delicate balance. Therefore I find the impugned words to have been published by both the Fourniers and Mr. Smith.

This concept of active engagement, control and authority over defamatory information was effectively used by the directors of the corporate defendant to remove personal liability on summary judgment in Kent v Postmedia Network Inc (though the plaintiff was ultimately successful against the defendant author).

Although the court noted here that the decision in Haaretz has left several issues unresolved, the defendant attempted to differentiate it on the basis that Twitter is a platform that posts messages by others. The court seems to have rejected this differentiation,

[47] That is a somewhat circular argument, because it depends in part on the substantive law that might be applied, namely whether an un-mediated platform such as Twitter is legally responsible for content posted or tweeted by others. That is not a settled point in Canadian law and the point was not argued in this hearing. It is not something that should be determined in a jurisdictional challenge. In any event, in this case I think the point is answered (for the purposes of this application) by the fact that on December 9, 2016, solicitors for Mr. Giustra wrote jointly to Twitter’s Inc.’s general counsel, and Twitter Canada’s general manager complaining of the tweets. Although the letter did not specifically mention that Mr. Giustra’s reputation in Canada was being damaged, the letter came from a law firm in Toronto. Mr. Giustra’s notice of civil claim lists in its appendix 79 tweets sent subsequent to the letter, and that is stated to be a small sample of the tweets. In short, for some of the tweets, Twitter was aware of their contents.

The case was also similar to Haaretz in that the plaintiffs in both case do not limit their claim to damages to their reputation in Canada. On this basis, Justice Myers indicated that lex loci delicti could apply to assess damages in the U.S. using American law, which would avoid duplicity of proceedings. This would also avoid a breach of comity between the nations,

[91] A scenario Haaretz did not deal with was the possibility that a court could try a case applying several jurisdictions’ laws to it. Nevertheless, that is a concomitant of the lex loci delicti rule. In the present case, the applicable law to tweets published in British Columbia would be B.C. law. The law applicable to tweets published in the United States would, under the lex loci delicti rule, be the governing law there. To state the same proposition in the negative, on the assumption that Twitter Inc. has no physical or business presence in Canada, I do not see in this case how B.C. law could be applied to tweets relayed by Twitter and published in the United States. That would be an extra-territorial and impermissible application of B.C. law.

The basis of juridical advantage in providing a basis for a claim where another jurisdiction would deny it entirely gives rise to other issues. The B.C. courts have rejected the notion that courts are required to assess the applicable law against constitutional standards of other states. The court stated in HMTQ v. Imperial Tobacco Canada Limited et al.,

[180] It is not rational to expect a domestic court to assess the fairness of its own procedures or domestic law in determining whether to take jurisdiction…

[187] It is also to be noted that courts will take jurisdiction over foreign defendants once a real and substantial connection has been found even in the face of express blocking legislation. [Wilson v. Servier Canada Inc. (2000), 2000 CanLII 22407 (ON SC)50 O.R. (3d) 219 (S.C.J.) at ¶28 and ¶30; Vitapharm v. F. Hoffmann-La Roche Ltd., supra at ¶117; Armstrong v. Servier Canada Inc. (2002), 24 C.P.C. (5th) 103 (B.C.S.C.) at ¶32-33; Laker Airways v. Sabena, Belgian World Airlines (1984), 731 F. 2d 909 at 935-6 (1996 DC Cir.)]

The other very significant issue that this case creates is the new United States-Mexico-Canada Agreement (USMCA), which states,

Article 19.17: Interactive Computer Services

1. The Parties recognize the importance of the promotion of interactive computer services, including for small and medium-sized enterprises, as vital to the growth of digital trade.

2. To that end, other than as provided in paragraph 4, no Party shall adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information.

3. No Party shall impose liability on a supplier or user of an interactive computer service on account of:

  • (a) any action voluntarily taken in good faith by the supplier or user to restrict access to or availability of material that is accessible or available through its supply or use of the interactive computer services and that the supplier or user considers to be harmful or objectionable; or
  • (b) any action taken to enable or make available the technical means that enable an information content provider or other persons to restrict access to material that it considers to be harmful or objectionable.

The wording in this provision is modelled after Section 230 of the CDA, leading some to conclude that USMCA has effectively incorporated it into Canadian law. However, a more nuanced reading suggests that it falls somewhere between the two national positions, and that the footnote to USMCA allow for a domestic interpretation of how this will be incorporated,

For greater certainty, a Party may comply with this Article through its laws, regulations, or application of existing legal doctrines as applied through judicial decisions.

In other words, if this case does proceed, part of what the trial judge and subsequent appellate courts would have to decision is whether the existing or recently reinterpreted doctrines regarding intermediate liability are consistent with this important trade agreement.

All that ultimately originating from messages only 280 characters long. And they say lawyers make things complicated.

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