Overview
What can you do if you’ve been defamed on the internet? Can you sue where you live? A Canadian court of appeal says yes, maybe.
The plaintiff in the case, a British Columbia resident, sued Twitter alleging that Twitter published tweets that defamed him in B.C., as well as elsewhere.
Twitter applied for an order dismissing the plaintiff’s Supreme Court of British Columbia action on the ground that the B.C. Supreme Court does not have jurisdiction over Twitter or, alternatively, staying the action on the ground that the court should decline jurisdiction in favour of the courts of California.
The B.C. Supreme Court judge hearing the Twitter motion found against Twitter on both issues, concluding that the B.C. Supreme Court has jurisdiction over the claim and should not decline to exercise it. Twitter appealed that ruling to the B.C. Court of Appeal.
The sole question before the Court of Appeal was where the plaintiff should litigate his claim: British Columbia or California? “Because tweets are not geographically constrained, the question is not without complication,” said the court.
It was conceded by Twitter that the B.C. Supreme Court has “presumptive jurisdiction” as the plaintiff lives there and alleged that he suffered harm there. The issues, as stated by the court:
[5] The jurisdictional questions that remain are twofold: (1) whether the relationship between British Columbia and the subject matter of the litigation is nevertheless so tenuous as to rebut the presumption of jurisdiction; and if not, (2) whether British Columbia should decline to exercise its jurisdiction on the ground that California is the more appropriate forum under a forum non conveniens analysis.
What the court said next is interesting:
[6] 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.
The court noted that there was a serious connection to British Columbia based on the plaintiff’s pleading that “he had a valued and unblemished reputation ‘in the province of British Columbia and elsewhere in Canada and throughout the world’, and that the tweets in question were published to ‘a large audience in British Columbia and elsewhere around the world.’”
The court found it important that the plaintiff pleaded that the tweets were “published in British Columbia about a person resident in British Columbia with businesses and charitable organizations in British Columbia that caused harm to his personal and professional reputation as established in British Columbia.”
The Court of Appeal then turned to whether California was the more appropriate forum. The court said that British Columbia is competent to apply both its domestic law in terms of damage sustained from tweets read in Canada, and U.S. law to damage arising from action solely in the United States.
In contrast, California would apply only U.S. law in accordance with U.S. legislation that precludes the California court from entertaining the claim regardless of where the tweets were read, noting that, by application of U.S. federal law, American courts are precluded from trying claims against Twitter based on defamatory tweets posted by users, regardless of where they may have been read. As such, the court found that the factor of applicable law favours British Columbia.
Further, it was stated that the fact that Twitter would have legislated cover in the U.S. would not make proceeding in British Columbia a pointless exercise; the plaintiff at least would have the opportunity to obtain a judgment vindicating his reputation – an opportunity denied from the outset in California.
In the end, the court decided that the plaintiff could pursue his claim in British Columbia. The plaintiff could sue where he lives. That said, the court didn’t say the claim could or would succeed.