A Canadian court has ruled Canadian citizens can file suit against Twitter for defamation. Mr Giustra, founder of Lionsgate Entertainment and an influential British Columbian businessman was the subject of several disparaging tweets including some about Mr Giustra’s alleged involvement in a child trafficking ring (“Pizzagate”).This affected his reputation in British Columbia and elsewhere.
Giustra is claiming damages and an injunction to be issued for defamatory tweets made on Twitter’s platform and argues that Twitter is liable under Canadian defamation law as a publisher.
Twitter’s defence is that Canadian courts have not jurisdiction to hear a defamation suit against it, since it is based in the California, United States of America.
In this case, the Court determined that it had jurisdiction to hear the substantive defamation suit, and that while a judgment favouring the plaintiff may not be enforceable, this does not preclude the court’s ability to hear the claim. The substantial questions about Twitter’s liability are yet to be determined.
British Columbian law has a two-step approach when determining whether the Court should hear a claim involving an international dispute.
The first step is determining whether the Court has jurisdiction simpliciter over a person. The Court must have territorial competence over a proceeding, which can be proven if there is a real and substantial connection between British Columbia and the facts of the proceeding.
Legislation provides an inexhaustible list of circumstances in which the Court’s competence is presumed. The Court found that since British Columbians read the tweets and this effected Mr Giustra’s regional reputation, the proceeding has a real and substantial connection.
The second step in determining whether the Court shall hear an international case is through a forumnon conveniens analysis. This is a discretionary exercise where the Court may decline to exercise its territorial competence in a proceeding if another state is a more “appropriate forum”. In this case, that would be California. The analysis requires the balance of a number of factors.
The Court found that there was no threat of a multiplicity of proceedings or conflicting different decisions because a trial would not take place in California. This is due to Twitter’s protection from defamation under US law.
The location of witnesses was a major factor in the Court’s analysis. All of Mr Giustra’s witnesses were located in British Columbia. Twitter did not identify any witnesses or potential witness’s unwillingness to participate in a Canadian hearing. Because of this, the Court determined that that it would be inconvenient and expensive for the plaintiff and his witnesses if the proceeding was heard in California.
Twitter argued that a Californian court would not enforce a Canadian defamation judgment. The Court found this unpersuasive, concluding that “in defamation cases, vindication of the plaintiff’s reputation is often a primary concern, if not the primary concern. This stance often renders the enforcement of the final judgment irrelevant to the forum non conveniens analysis in defamation cases. ”Successfully enforcing a remedy was less important than Court’s ability to vindicate Mr Giustra’s reputation.
Following the Supreme Court of Canada’s in Haaretz v Goldhar, the Court applied the rule of lexloci delicti - that the applicable law was that law of the jurisdiction that the tort occurred in. Haaretz determined that in internet defamation cases, the tort occurs where the words are read. However, this would limit the application of Canadian law to the tweets read in Canada. If Mr Giustra wished to claim damages and injunction for tweet relayed and read in the USA, he would have to prove he had grounds under American law. This was a question for the substantial hearing.
Lastly, the Court decided on the question of whether there was an unjust judicial advantage in favour of the plaintiff. California, as a forum, would “clearly” not provide a satisfactory remedy. The proceedings had a real and substantial connection with British Columbia and this proved that Mr Giustra was not unfairly “forum shopping”.
With all those factors the Court concluded that British Columbia was the appropriate forum to hear the proceeding. Having satisfied both tests, the substantial trial is allowed to take place.
With the increasing presence of Big Tech in our daily lives and with current concerns about censorship, international precedent may motivate New Zealand’s court to take a similar stance on territorial competence when it comes to defamation or other torts committed by foreign companies.
Plaintiffs will run into the same questions of territorial competence and jurisdiction, but the High Court Rules provide a list of scenarios were a claimant can sue foreign parties in New Zealand. If a suit is protested, the courts use a forum nonconveniens analysis similar to British Columbia’s and have discretion to determine whether New Zealand is the appropriate forum.
This case begins to erase jurisdictional barriers between states concerning online activity. Even as recent international precedent, this increases the likelihood a territorial competence test being decided in favour of a plaintiff. And with other recent New Zealand law reform, such as codifying of the lex loci delicti principle, New Zealand may see suits like Giustra in the future.
This is a space to watch.
If you are interested in this case, get in touch with Patrick Corish