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By Paul Russell, LegalMatters Staff • A recent decision by the Supreme Court of British Columbia is an important step toward holding online social media platforms responsible for the defamatory content they publish, says Toronto lawyer Howard Winkler.
“I receive many calls a week from people who are the subject of fake reviews or false comments on social media platforms such as Google, Facebook and Twitter,” says Winkler, principal and founder of Winkler Law.
Finding the true identity of the original poster is often difficult or impossible. That leaves the social media platforms as the only avenue for recourse. “The difficulty is that the liability of those platforms in Canada remains untested, and the roadblocks they throw up against plaintiffs make it financially impossible for ordinary people to seek any kind of justice” he adds.
In Giustra v Twitter, Inc., the court gave Vancouver businessman Frank Giustra the go-ahead to sue Twitter in a B.C. courtroom about a series of tweets tying him to unproven conspiracy theories involving pedophile rings and Bill and Hillary Clinton.
Twitter loses jurisdiction dispute
According to a CBC News article, Justice Elliott Myers ruled the court had the jurisdiction to hear the case, considering Giustra’s strong business tie to the province combined with “the possibility the tweets may have been seen by as many as 500,000 B.C. Twitter users.”
When Giustra filed the defamation lawsuit in 2019, Twitter responded with an application to have the suit dismissed, arguing it has no business interests in British Columbia, according to court documents. If his claim were to be heard anywhere, its lawyers said it should in the American state where the social media giant is based.
“Twitter tried to force the plaintiff to file the lawsuit in California because they knew that s. 230 of the U.S. Communications Decency Act provides complete immunity to social media platforms,” Winkler tells LegalMattersCanada.ca.
“If they had been successful in forcing Mr. Giustra to go to California or any U.S. state, he essentially would have no remedy,” he explains. “This was another attempt by a large social media giant to try to avoid the imposition of liability on them for the content that they facilitate.”
Important win for everyone
After the B.C. court ruling, Winkler says Canada has moved one step closer toward holding social media platforms liable for the publication of defamatory material, once it is brought to their attention and not then removed.
“The decision to allow Mr. Giustra’s lawsuit to proceed in the B.C. court is significant. It brings ordinary Canadians one step closer to having the ability to seek a remedy in Canada in respect to fake and false content published on social media platforms,” says Winkler.
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That has already happened half a world away, with the Supreme Court of South Australia ruling that website operators were liable for defamatory content on their platforms if they were put on notice about it then failed to remove it.
“The ignorant should not be allowed to wreck reputations with impunity,” the 2017 judgment reads. “Once knowledge, actual or constructive, of the presence of the words is proved, the secondary publisher who persists in the dissemination of the material carries the risk … which may be made in any action brought by a primary publisher.”
‘Common law principles should apply’
“As the Australian court found, existing common law principles should apply to impose liability if the platform is put on notice of the defamatory nature of the content,” says Winkler. “Even in the United States, both the Republicans and the Democrats, for different reasons, have expressed the view that the absolute immunity in the Communications and Decency Act ought to be revised. With each new decision or act of legislation reform, a day of reckoning is coming for social media platforms.”
The need to provide some remedy to deal with false content online has generated greater prominence in the United States during the last two national election campaigns, he says.
“We are now seeing more people demanding that social media platforms be held accountable for what they publish,” he says, acknowledging that Facebook and Twitter are beginning to take steps in that direction.
“But when it comes to ordinary people, it is almost impossible to get social media platforms to cooperate in the removal of content that is devastating to individuals and businesses,” he says.
Holding social media to account
Winkler noted that most Canadians have blindly agreed to the registration terms of social media platforms that include language with limitations on liability, abusive arbitration provisions and choice of law and forum provisions that discourage claims. In separate decisions the Supreme Court of Canada has held that such abusive provisions will be unenforceable and that mandatory orders of Canadian courts can apply worldwide.
“With this judgment, we now know that Canadians may bring action in Canada in respect to defamatory comments posted on these platforms and won’t be forced to sue in the U.S. where the platforms currently enjoy complete immunity” says Winkler.
According to the article, Giustra is looking forward to pursuing the case in the province where he built his reputation as the founder of Lionsgate Entertainment.
“I believe that words do matter, and recent events have demonstrated that hate speech can incite violence with deadly consequences,” he told CBC.
