Defamation Claim Against Twitter Allowed To Proceed In British Columbia

• Published date: 27 January 2021
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, IT and Internet, Libel & Defamation, Social Media
• Law Firm: Gardiner Roberts LLP
• Author: Mr James Cook

When defamatory statements are alleged to have been transmitted internationally via social media, the question of where to start a lawsuit is often a key issue. While a defendant should ordinarily only be sued in one jurisdiction, internet-based defamation makes this presumption difficult to apply fairly given the multiple countries where a plaintiff has a reputation to protect.

In Giustra v Twitter, Inc., 2021 BCSC 54 (CanLII), the plaintiff commenced a lawsuit in British Columbia against Twitter claiming damages and an injunction for defamatory tweets authored by others. Some of the tweets described the plaintiff's alleged relationship with Bill Clinton, his alleged involvement in 'pizzagate,' and other personal attacks accusing him of being in a pedophile ring. The tweets strayed far beyond political commentary.

The tweets were read in Canada and the United States and elsewhere given Twitter's international reach. Twitter argued that California, where it was based, was a more convenient forum for the lawsuit (the doctrine of forum conveniens). The plaintiff wanted the action to proceed in British Columbia. Of note, Twitter would have no liability to the plaintiff in California due to the freedom of speech protections in United States law. No such statutory protection exists in Canada.

The governing authority regarding jurisdiction over internet defamation cases is the Supreme Court of Canada's decision in Haaretz.com v. Goldhar, 2018 SCC 28 (CanLII), [2018] 2 SCR 3. At para. 36, the Supreme Court confirmed that in the case of internet communications, 'the publication of defamatory statements occurs when they are read or downloaded by the recipient.'

The plaintiff's unchallenged allegation was that the defamatory statements were read by persons in British Columbia. Accordingly, Twitter had to rebut the presumption that British Columbia was the appropriate jurisdiction ('jurisdiction simpliciter'). The key consideration was whether it would be reasonable to expect Twitter to answer a claim in British Columbia.

Similar to the facts in Haaretz (which involved statements published in a prominent Israeli newspaper and web site), the Twitter articles were published on the internet and accessed by people in the proposed jurisdictions. In both cases, the plaintiffs were international business persons with reputations in and connections to several countries.

Twitter attempted to distinguish itself from a newspaper on the basis that it was simply a neutral...