Canadian Court Asserts Jurisdiction in Defamation Lawsuit Against Twitter

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing an application to decline jurisdiction of a defamation lawsuit against twitter.

In today’s case (Giustra v. Twitter, Inc.) the Plaintiff brought a lawsuit against Twitter claiming damages and an injunction for defamatory tweets authored by others and relayed on Twitter’s internet platform.  Twitter argued that the lawsuit should be brought in the US and that there the claim was bound to fail as they enjoy the protections of Section 230 of the Communications Decency Act of 1996, 47 USC (1996), which “protects freedom of speech on the internet by providing internet platforms such as Twitter with immunity against liability for tort claims arising from the dissemination of content from third-party users.“

The BC Supreme Court was unpersuaded and found to the extent that the tweets were published in Canada, involving a Canadian plaintiff, making personal allegations against that plaintiff and causing harm to him in Canada with the Defendant having over 500,000 users here the Court was firmly within its rights to accept jurisdiction.  In reaching this conclusion Mr. Justice Myers provided the following reasons:

[117] Mr. Giustra, as I have shown, has close connections here. Tweets were published here. Many of the tweets refer to British Columbia. They go beyond the articles in the Haaretz case which primarily impugned Mr. Goldhar’s business practices: here the tweets refer to Mr. Giustra’s personal characteristics alleging, for example, pedophilia.

[118] Although the Supreme Court of Canada left open the possibility of it reconsidering the choice of law rule for defamation cases, I have approached this matter – as I think I am bound to – on the basis that the lex loci delicti rule applies, given that is the current state of the law. On this basis, British Columbia law would apply to tweets read in B.C.; California or U.S. law would apply to tweets read there.

[119] That being the case, there would be no breach of comity by this court assuming jurisdiction. It would not be ignoring California law, nor would it be making any evaluation of that law, as Twitter alleges. The court would be applying, in part, U.S. or California law. If Twitter is correct, Guistra will not be able to recover damages for tweets published in the U.S.

[120] Twitter has not presented the possibility of a court in California applying a similar analysis. On its argument, Mr. Giustra’s claims, including that for damage arising from tweets published in Canada, would inevitably be dismissed.

[121] The following from Black is apt here:

[37] In the end, some of the factors relevant to the forum non conveniens analysis favour the Illinois court, while others favour the Ontario court. The forum non conveniens analysis does not require that all the factors point to a single forum or involve a simple numerical tallying up of the relevant factors. However, it does require that one forum ultimately emerge as clearly more appropriate. The party raising forum non conveniens has the burden of showing that his or her forum is clearly more appropriate.

Balancing all of the factors, I do not think that this court ought to decline jurisdiction.