2021 January 14

Giustra v. Twitter, Inc., 2021 BCSC 54

The British Columbia Supreme Court concluded that it has jurisdiction simpliciter over the plaintiff’s claim against Twitter for damages for defamatory tweets authored by others and relayed on Twitter’s internet platform under the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 (the “CJPTA”).  A court has territorial competence if there is a “real and substantial connection between British Columbia and the facts on which the proceeding is based” (CJPTA, section 3).  A presumptive factor establishing a real and substantial connection is “a tort committed in British Columbia” (CJPTA section 10(g)).  The tort of internet defamation takes place where the defamatory statements are read, accessed or downloaded by a third party:  Haaretz.com v Goldhar, 2018 SCC 28 at paragraph 36.

“Twitter has not rebutted the presumption of a real and substantial connection based on a tort having been committed in the province.” “[T]the notice of civil claim alleges that each tweet has been read  by many people in BC.   There is no evidence as to the number of people in British Columbia who read the tweets but it appears there [sic] at least 500,000 twitter users in the province.  In my view for the purposes of a jurisdictional challenge (where pleaded facts are  taken to be correct unless challenged by evidence adduced by the defendant), Giustra has gone far enough in demonstrating damage to his reputation here.”    The Court was careful to note that its judgment concerning jurisdiction does not determine whether Twitter has any ultimate liability to the plaintiff.

The Court rejected Twitter’s submission that it should decline to exercise jurisdiction on the basis that California is the more appropriate forum.  Discounting Twitter’s argument that the expense and inconvenience of bringing Twitter’s witnesses to a trial in British Columbia weighed in favour of California, the Court stated: “That consideration should not be overstated.  During these times of the COVID-19 pandemic, this court and others in Canada have developed the capability to effectively deal with the remote participation of witnesses in a trial.   That might not be satisfactory in all cases or for all witnesses, but here there is nothing to indicate that this case will involve close calls of credibility.   Moreover, usually the concern about witnesses not being present in person is with their cross-examination.    But Twitter is concerned about its own witnesses’ convenience and obviously it will not be permitted to cross-examine them.”