BCCA upholds finding that local courts have jurisdiction over defamation claim against Twitter
As has been reported on, in December 2021 the British Columbia Court of Appeal ruled that a defamation action by well-known Vancouver businessperson Frank Giustra could proceed in the courts of British Columbia, dismissing an appeal of the lower court’s finding that the province had jurisdiction over the action. In the action (which is still only at the pleadings stage), Giustra has alleged that he was targeted by “group who vilified the Plaintiff for political purposes in relation to the 2016 United States election…[as] part of an orchestrated campaign to discredit the Plaintiff in part because of his charitable and philanthropic work in support of the Clinton Foundation.” He says he gave notice to Twitter and that it removed some of the offending tweets, but that it continued to publish a large number of them. The tweets, Giustra pleaded, have been published in British Columbia and around the world, and characterize him as a pedophile among other defamatory statements; and they have damaged his reputation, compromised his involvement with children’s charities, and interfered with his business dealings.
At issue in this particular matter was Twitter’s motion to strike the action, on the basis that British Columbia did not have jurisdiction simpliciter over the matter, or that the court should exercise its discretion not to hear the matter on the basis of forum non conveniens. Writing for a unanimous court, Justice Grauer framed some of the technologically-driven aspects of the case:
The question raised in that application and on this appeal, then, is not whether Twitter can properly be found liable to Mr. Giustra for defamation, or whether policy considerations should insulate it from liability. Rather, the sole question is where Mr. Giustra should litigate his claim: British Columbia or California? Because tweets are not geographically constrained, the question is not without complication.
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.
Twitter conceded (“properly”) that British Columbia presumptively had jurisdiction simpliciter over the matter, as the province’s Court Jurisdiction and Proceedings Transfer Act provides for presumptive jurisdiction on the basis that there is a “real and substantial connection” to the province where “a tort is committed there:”
As the majority of the Supreme Court of Canada explained in the leading case of Haaretz.com v Goldhar, 2018 SCC 28 at para 36, the tort of defamation is committed where material has been “communicated” to at least one person other than the plaintiff, so that “the situs of Internet-based defamation is the place where the defamatory statements are read, accessed or downloaded by the third-party”. Mr. Giustra pleaded that took place in British Columbia, as well as elsewhere.
Relying on Haaretz, Twitter argued that the presumption in favour of jurisdiction was rebutted because, given Twitter’s world-wide reach, a real and substantial connection could easily be established in any number of jurisdictions, which raised the potential for “forum shopping,” and jurisdiction was most appropriate where the greatest harm was suffered. However, the pleadings indicated that Giustra’s primary residence was in BC, where he had an established reputation and businesses incorporated, and that the tweets had been published to at least 50,000 people in the province, none of which was denied by Twitter. Therefore, a “real and substantial connection” was made out. Nor did the fact that Giustra has business interests and reputation worldwide make it unforeseeable that he would want to vindicate his reputation in British Columbia.
Twitter had argued that it could not be liable for publication, given that it was simply a platform for the communications of others, but Justice Grauer agreed with the lower court that this was a matter of the substantive law of defamation and would need to be litigated in the main case rather than at the pleadings/jurisdictional stage. There was also no merit to Twitter’s suggestion that it could not reasonably have been expected to be sued in British Columbia on the basis that when the tweets were brought to its attention, BC was not mentioned—given that a letter was sent on the letterhead of one of Giustra’s BC corporations, and was also sent to Twitter’s Toronto office. Nor had there been any need for Giustra to file actual evidence to support his injury in BC, simply because Twitter had sought to rebut the presumption of jurisdiction simpliciter.
On the issue of forum non conveniens, the Court dismissed Twitter’s argument that the motions judge had erred by not explicitly considering all of the statutory factors set out in the Act, holding that he had considered all of them in substance. Justice Grauer agreed with Twitter that, given that California law would allow it to have the action summarily dismissed, this was a relevant factor to be considered whether it was treated as a matter of applicable law or juridical advantage. Twitter pointed to the “pointlessness” of the action proceeding in British Columbia, given that it was immune from suit under American law and American courts would not enforce a foreign defamation judgment on free speech grounds. However, Justice Grauer, responded:
 These arguments also do not alter the fact that, on Twitter’s analysis, comity runs as a one-way street in this matter. While courts in the United States are prohibited from respecting and enforcing any order made against Twitter in Canada, that is not so of Canadian courts in relation to any order pronounced in the United States. As the Equustek Solutions Inc v Google Inc litigation demonstrated, the courts in the United States are legislatively prohibited from respecting the different constitutional and legal approach in Canada, notwithstanding our shared values.
 But that does not make proceeding in British Columbia a pointless exercise, for Mr. Giustra would at least have the opportunity to obtain a judgment vindicating his reputation (see Banro at para 45)—an opportunity denied from the outset in California.
The Court also agreed with the trial judge’s finding that there was:
…no practical difficulty arises that would make holding the trial in British Columbia unfair to Twitter by reason of inconvenience and expense, at least as balanced by the unfairness to Mr. Giustra of being required to commence proceedings in California that could not succeed. In doing so, the judge followed section 11(1)’s overarching requirement that he consider “the interests of the parties to a proceeding and the ends of justice”.
Accordingly, the forum non conveniens challenge also failed.