B.C. Court Holds That It Has Jurisdiction Over Twitter In Defamation Case

• Published date: 25 January 2021
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Libel & Defamation, Social Media
• Law Firm: Torys LLP
• Author: Mr Craig Gilchrist, Sarah E. Whitmore and Andrew Bernstein

In a decision released last week, Giustra v. Twitter, Inc.¹, the Supreme Court of British Columbia dismissed an application by Twitter challenging the Court's jurisdiction to hear a defamation action relating to tweets that billionaire plaintiff Frank Giustra alleged were defamatory. Underlying Mr. Giustra's claim is an unsettled question in Canadian law: should an unmoderated social media platform be held liable for defamatory content published by others? In dismissing Twitter's jurisdictional challenge, the Court opened the door to the possibility that the merits of this question will now be decided in Canada.

What you need to know

• Twitter challenges jurisdiction. Twitter argued that the claim should proceed in California. Mr. Giustra resisted the application, which if granted, would have effectively ended his lawsuit. If Mr. Giustra was required to pursue his claim in California, Twitter would have no liability as a result of the U.S. Constitution's guarantee of free speech as well as section 230 of the U.S. Communications Decency Act.
• 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 in British 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, were Mr. Giustra's action to proceed in California, it would be dismissed. Under the First Amendment and section 230 of the 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 as Bill Clinton, George Soros, and Mr. Giustra are participants in a worldwide child trafficking ring. Rather than pursuing the authors of the tweets, Mr. Giustra, a resident of...