Articles
<< back to all ArticlesBritish Columbia Court of Appeal Upholds Landmark Ruling on Jurisdiction in Internet Defamation Cases
In January 2021, RMRF’s team, led by Matt Woodley and Tess Layton, successfully argued that a Canadian resident should be permitted to sue Twitter, a social media giant headquartered in the United States, in his home province of British Columbia for defamatory and threatening tweets published by Twitter users to Twitter. A detailed overview of that decision can be found in our original blogpost.
Twitter appealed that decision to the British Columbia Court of Appeal. The Court of Appeal dismissed Twitter’s appeal and agreed that the plaintiff can pursue his defamation lawsuit against Twitter in British Columbia.
Background
This appeal arose out of a claim brought by Mr. Frank Giustra, a Canadian businessman and philanthropist who lives in Vancouver, British Columbia. Mr. Giustra sued Twitter Inc. (“Twitter”) for defamation after a series of Tweets, published to Twitter’s website, implicated Mr. Giustra in widely discredited conspiracies, including “Pizzagate” and “QAnon”. The Tweets included threats of violence against Mr. Giustra.
Mr. Giustra launched his lawsuit in British Columbia, where Mr. Giustra resided and where the overwhelming majority of his business and philanthropic ventures are located. Twitter, headquartered in California, brought an application to have Mr. Giustra’s lawsuit struck on the basis that the British Columbia courts lacked jurisdiction to hear the claim. Twitter argued that the proper venue for the defamation lawsuit is California, where Mr. Giustra would have no meaningful claim against Twitter. This is because the United States Constitution and several federal statutes governing speech in the United States immunize social media companies from liability for defamatory content posted on their websites. If the claim was brought in the United States, Mr. Giustra would have had no recourse against Twitter for the defamatory Tweets.
The British Columbia Supreme Court dismissed Twitter’s application to strike Mr. Giustra’s lawsuit, ruling that the court in British Columbia has jurisdiction to hear Mr. Giustra’s claim.
The Appeal
Shortly after the British Columbia Supreme Court issued its decision, Twitter appealed to the British Columbia Court of Appeal. Twitter appealed both steps of the test for establishing jurisdiction: jurisdiction simpliciter and forum non conveniens.
Rebutting the presumption of jurisdiction simpliciter
British Columbia is presumed to have jurisdiction over claims where there is a “real and substantial connection” between British Columbia and the facts of the claim. This is called jurisdiction simpliciter. Both Twitter and Mr. Giustra agreed that a “real and substantial connection” had been established, because the defamatory Tweets had been read, accessed, or downloaded by individuals in British Columbia.
However, this presumption is rebuttable by establishing facts which demonstrate that there is only a weak relationship between the subject matter of the claim and British Columbia. The Court of Appeal found that Mr. Giustra’s claim had a substantial connection to British Columbia: his primary residence was in British Columbia, he had an established reputation in British Columbia, he was the head of businesses incorporated in British Columbia, and he was the president of a philanthropic organization based in British Columbia.
The Court of Appeal found that Mr. Giustra’s connections to California are largely irrelevant because the test concerns whether there is a real and substantial connection to British Columbia and not whether British Columbia is the place where the most substantial harm has been suffered. The fact that Mr. Giustra had sent repeated notices to Twitter of the defamatory tweets both through his legal counsel and personally gave Twitter sufficient notice that Mr. Giustra intended to vindicate his Canadian reputation in a Canadian court. The Court of Appeal also noted that many of the Tweets in issue referenced Mr. Giustra’s connection to Canada and his Canadian business and philanthropic endeavors.
Forum non conveniens
Once jurisdiction simpliciter is established, the Court of Appeal then turned to consider forum non conveniens. This asks whether a British Columbia court should decline to exercise its jurisdiction because California is clearly the more appropriate forum. In determining whether California is a clearly more appropriate forum, the Court looks to the following factors:
- The comparative convenience and expense for the parties in the proceeding and for their witnesses, in litigating in the court or in any alternative forum,
- The law to be applied to issues in the proceeding,
- The desirability of avoiding multiple legal proceedings,
- The desirability of avoiding conflicting decisions in different courts,
- The enforcement of an eventual judgment, and
- The fair and efficient working of the Canadian legal system as a whole.
In internet defamation cases, the forum non conveniens test takes on particular importance, as it is often easy to establish a real and substantial connection to any jurisdiction when posts on the internet are widely distributed and accessible.
Twitter argued that the British Columbia Supreme Court had to expressly consider each of these factors and “weigh” them individually. The Court of Appeal found that this was not necessary given the circumstances of this case, particularly given that Mr. Giustra would have no legal remedy in California, and in any event, the trial judge had weighed all of these factors in substance.
Twitter further argued that the trial judge gave too much weight to the fact that Mr. Giustra’s claim would be dismissed at an early stage in the United States due to the defamation protections for social media corporations. The Court of Appeal disagreed. In this case, the alternative jurisdiction of California would clearly not provide Mr. Giustra with a fair opportunity to present his case. On the other hand, proceeding in British Columbia would not deny Twitter a fair opportunity to present its defence. Twitter would be able to present its case in either forum – the same could not be said for Mr. Giustra. The trial judge attached an appropriate amount of weight to this factor given the facts of this case.
Conclusion
The Court of Appeal dismissed Twitter’s appeal in its entirety and upheld the judgment of the British Columbia Supreme Court. Mr. Giustra can now pursue his defamation lawsuit in British Columbia to vindicate his reputation.
This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.
