Hey all,
The BC Supreme Court ruled yesterday in Giustra v. Twitter, Inc., 2021 BCSC 54 that the court has (and will exercise) jurisdiction in a defamation lawsuit against California-based Twitter by a BC plaintiff. The ruling provides encouragement for Canadian plaintiffs attempting to hold U.S.-based internet platforms responsible for content accessed by Canadians.
As per the CBC article below:
West Vancouver billionaire Frank Giustra has been given the go-ahead to sue Twitter in a B.C. courtroom over the social media giant’s publication of a series of tweets tying him to baseless conspiracy theories involving pedophile rings and Bill and Hillary Clinton.
In a ruling released Thursday, Justice Elliott Myers found that Giustra’s history and presence in British Columbia, combined with the possibility the tweets may have been seen by as many as 500,000 B.C. Twitter users, meant a B.C. court should have jurisdiction over the case.
Note: The CBC article seems to conflate the court’s finding of territorial competence with its decision to exercise jurisdiction under the forum non conveniens analysis.
An interesting part of the court’s analysis is the court’s rejection of Twitter’s argument of forum non conveniens, in which the court distinguishes the facts of the present case from the leading case regarding jurisdiction over internet defamation (Haaretz.com v. Goldhar, 2018 SCC 28). In Haaretz, the ONSC was found to have jurisdiction simpliciter but Ontario was ruled to be forum non conveniens (in favour of an Israeli court).
The full judgment can be accessed here:
https://www.bccourts.ca/jdb-txt/sc/21/00/2021BCSC0054.htm
Hi Marshall,
Thanks for posting this case. I took a read through the CBC article and the judgement. I had an immediate reaction wondering where the basis for suing Twitter came from rather than the individual(s) that posted the tweets. I always looked to Twitter as a forum for expression, and wonder if the reality that one can sue a platform for the conduct of another users (especially given that that conduct is constitutionally protected in the country where it occurred — I imagine it was a tweet from the US) would set a precedent that any social platform was entirely responsible for the behavior of its users. This makes me think of a slippery slope argument whereby Facebook may one day be partially responsible for a death from online bullying by peers, or Instagram could be responsible for hateful comments made by all its users. Given such liability, I wonder if social platforms would infringe on patrons’ freedom of expression unnecessarily to insulate themselves from potential charges in the future.
To my understanding, in this case, a distinction is drawn between presumption of jurisdiction simpliciter and forum non-conveniens: the former being non-discretionary and the latter being discretionary. This distinction is somewhat overlooked in the CBC article, as Professor Festinger points out in his post.
In the present era of social media and internet, jurisdiction in defamation cases is indeed hard to pin down. Unlike in Haaretz where the online postings originated from one company based in Israel, the defamatory Twitter posts were written by individuals who were located across jurisdictions. Twitter was merely a platform on which these defamatory posts were being circulated. To my understanding, it was ultimately decided that Mr. Guistra established a “real and substantial” connection to British Columbia. The court relied on the fact that the detrimental effects of these posts were undeniably felt in British Columbia. This establishes the jurisdictional competence (also known as presumption of jurisdiction simpliciter). The Court has jurisdiction to consider a list of (non-exhaustive) factors listed at para [57] to determine the forum non-conveniens.
I believe that defamatory posts made on social media platforms is one issue that the Courts will encounter more prevalently in the future. With the rise of social media, conflict and defamation know no borders. I wonder how this case will pave the way for cyber-bullying which I assume is an issue of criminal law but, might still consider simpliciter and forum non-conveniens if a victim lives in Canada but the perpetrator lives in another country. It would also be interesting to see how Giustra v Twitter affects later cross-jurisdictions defamation cases. Several questions I have are: how much of the responsibility should companies like Twitter bear when their users (and not their own employees) are writing defamatory posts? In the post-COVID era, when the use of video-chatting platforms such as zoom and skype are so common, will the court modify its current list of factors that it considers in finding forum non-convenien?