An attempt by Twitter to shut down a defamation lawsuit from West Vancouver billionaire Frank Giustra, or have it moved to friendlier U.S. courts, has been rejected by the B.C. Court of Appeal.
Giustra sued Twitter in 2019, alleging the social media giant allowed false and defamatory messages to be posted about him. In his claim, the mining, securities and film magnate/philanthropist said, because of his support of Hillary Clinton in the 2016 U.S. election, he became the target of attacks, alleging he was corrupt, that he was involved in murders, and that he was a player in the so-called Pizzagate pedophilia conspiracy theory.
Under Canadian case law, defamation is committed where the statement has been communicated, which Giustra argued was in British Columbia where he has a good reputation and character that was being damaged.
Rather than file a response to the defamation suit, Twitter sought to have it thrown out, arguing B.C. was not the correct jurisdiction. The company’s lawyers said the case should be heard in a California courtroom, where Twitter’s head office is. B.C. Supreme Court Justice Elliott Myers rejected that request in January and Twitter appealed.
Although it was not the only thrust of Twitter’s legal arguments, the B.C. Supreme Court and B.C. Court of Appeal both acknowledged the obvious advantage Twitter would gain if the case were to be tried in the United States, where freedom of speech protections shield social media companies from liability over what users publish on them.
“It is, perhaps, worth mentioning at the outset that lurking in the corner of the room is a metaphorical elephant, one that Twitter maintains should largely be ignored, though Justice Myers disagreed: Under US federal law, any action brought against Twitter for defamation in the United States is doomed to fail, and any libel judgment obtained against Twitter elsewhere will not be enforced by the courts of California or any other American jurisdiction,” Justice Christopher Grauer wrote in the unanimous decision for the B.C. Court of Appeal, handed down on Dec. 10.
In their appeal, Twitter argued B.C. should not be the presumptive jurisdiction as it had only a tenuous connection to the dispute. Giustra keeps a home in Beverly Hills, they noted, and the tweets that were the subject of his complaints were overwhelmingly posted by Americans in the United States, particularly in reference to the 2016 U.S. election and Giustra’s relationship with the Clintons.
Twitter also asserted Giustra had failed to show his reputation was damaged in B.C. and that, as a publisher they “cannot reasonably be expected to be aware of the reputation and location of any given person mentioned on its platform.”
In their submissions to the Court of Appeal, Giustra’s lawyers argued Twitter makes the content of its platform available worldwide and that the company must have understood it could be exposed to jeopardy in jurisdictions other than California. They also pointed out that even after Giustra complained about the tweets harming his reputation in B.C., Twitter continued to publish them.
With the court already having found B.C. to be the correct jurisdiction, the burden to rebut that would fall to Twitter, and whatever new evidence they bring to show Giustra has no reputation to damage here, Grauer wrote.
“… Twitter – unsurprisingly – adduced no such evidence. Likewise, Twitter did not adduce evidence that the offending tweets were not read or accessed in British Columbia on the basis that this was commercially sensitive information,” Grauer said.
Twitter also attempted to persuade the B.C. court to decline its jurisdiction, given that Twitter’s witnesses, documents, the tweets themselves, and the ability to enforce a judgment were all based in the United States generally, or California specifically.
The B.C. Supreme Court, they argued, gave too much weight to the fact California’s law “immunizes computer service providers like Twitter from liability for information that originates with third parties.”
Again, the B.C. Court of Appeal disagreed, reasoning Twitter will still have the opportunity to make that case at a trial in British Columbia.
“As Twitter was at pains to point out, should it be obliged to proceed to trial in British Columbia, it will raise the defence that, in law, it cannot properly be considered a publisher of tweets read in British Columbia (or anywhere else) that it did not author or create…,” Grauer wrote. “The difference is that in California, Twitter will be in a position to have Mr. Giustra’s claim summarily dismissed on the basis of that defence, while in British Columbia, it will have only the opportunity to persuade a court that the defence is available to it on the merits.”
Twitter has still not filed a response to Giustra’s claim and the allegations against the company have not been tried in court. Twitter may seek leave to appeal to the Supreme Court of Canada but once the jurisdictional question has been settled, the company must file a response to Giustra’s original claim.
In the suit, Giustra is seeking a mandatory permanent injunction requiring Twitter to delete the tweets and to prohibit further publications by its users of materials that are defamatory to him, as well as general damages.
