B.C. Appeal Court rules provincial court has jurisdiction over defamation suit against Twitter

The Court of Appeal for British Columbia upheld a lower-court ruling allowing the CEO of the Fiore Group of Companies and Lionsgate Entertainment founder, Frank Giustra, to proceed with a defamation lawsuit against Twitter Inc. in its provincial courts. In a decision made earlier this month, the appeal court determined that the Supreme Court of British Columbia judge was right to allow the defamation case to proceed in Canada as opposed to California, where the company is headquartered. “The sole question is where Mr. Giustra should litigate his claim: British Columbia or California? Because tweets are not geographically constrained, the question is not without complication,” Justice Christopher Grauer wrote in the decision concurred in by his colleagues. In April 2019 Guistra, a West Vancouver, B.C., resident, filed a civil claim alleging he was targeted since 2015 by a group on the social media platform who “vilified” him for “for political purposes in relation to the 2016 United States election… part of an orchestrated campaign” to discredit him because of his philanthropic work in support of the Clinton Foundation. The tweets allegedly characterized him as a pedophile and compromised his involvement with children’s charities. According to the court documents, Giustra also claimed that he has given Twitter notice which then removed “some of the tweets” contained in the notice but refused “to remove all false, defamatory, threatening and malicious tweets” from its website. He also alleged that Twitter “has published and continues to publish a large number of false, defamatory, threatening and abusive tweets” which the judge said examples of which were given. His claim also argued that Twitter has approximately seven million Canadian users monthly, therefore, his reputation is being harmed in British Columbia along with elsewhere in the world. Twitter then applied for an order dismissing the action on the ground that the Supreme Court of British Columbia did not have jurisdiction over Twitter, or alternatively, staying the action on the grounds that it should decline jurisdiction in favour of the courts of California. Grauer noted that Twitter asserts that, in law, it cannot properly be considered a “publisher” of tweets that were authored and posted on its platform by its users, however, he also noted, “that is an issue for another time.” The questions before the Supreme Court, and the Appeal Court, regarding Twitter’s application to dismiss, are if the provincial court has jurisdiction, and if it should decline to exercise its jurisdiction on the basis that California is a more appropriate venue for the legal case. Justice Elliot Myers of the B.C. Supreme Court originally found in January 2021 that Twitter had failed to rebut the presumption of jurisdiction. Grauder noted in the appeal decision that Canadian law set precedent that the tort of defamation is committed where material has been “communicated” to at least one person other than the plaintiff, there, Internet-based defamation is the place where the defamatory statements are read, accessed or downloaded by the third-party. However, he also noted that there is also precedent that the defendant may establish that there is only a “weak relationship between the subject matter of the litigation” and the forum. “The burden would be on the defendant to establish through evidence that the plaintiff has no reputation, or only a weak one, in the forum in question,” Grauer wrote. “In the present case, I am satisfied that the judge was correct in concluding that Twitter had failed to rebut the presumption of a real and substantial connection based on the connecting factor of the tort having been committed in British Columbia.” Myers also found in January that the case should proceed in the province, and the court should not relinquish its jurisdiction. Twitter argued that the content of the tweets were American-centric and the case would possibly harm the freedom of speech of American users. However, Myers found that some of the Tweets explicitly mentioned Canada, the Prime Minister, and Giustra’s Canada businesses. Grauer also observed “that US law does not protect the authors of the tweets from liability—if identified, they may still be sued in the United States. Rather, it only protects Twitter from being liable for providing a platform for defamatory tweets.” – Reporting by Jenna Cocullo at jcocullo@thewirereport.ca and editing by Paul Park at ppark@thewirereport.ca.

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B.C. Appeal Court rules provincial court has jurisdiction over defamation suit against Twitter

Broadcast | December 21, 2021

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