Twitter loses Appeal Court bid to toss wealthy B.C. businessman's defamation suit

B.C.'s Court of Appeal has rejected a bid by Twitter to dismiss a defamation lawsuit filed by a wealthy B.C. businessman over a series of a tweets tying him to baseless conspiracy theories involving Bill and Hillary Clinton.

The social media giant had argued that a lower court judge was mistaken in finding Frank Giustra's claim should be heard in B.C. as opposed to California, where Twitter is headquartered and the businessman keeps a home. 

But in a unanimous decision, the province's top court agreed Friday with Justice Elliott Myers who said B.C. is the proper venue for the claim both because of Giustra's "significant reputation" in the province and the fact more than half a million B.C. Twitter users may have seen the posts.

In a written statement to CBC, Giustra said he was pleased with the decision and looking forward to "finally pursuing this case in British Columbia.

"My hope continues to be that this lawsuit will help raise awareness of the harms that can arise if social media platforms are not held responsible for the content posted and published on their sites," Giustra said.

"Canadians should have a legal remedy in their home province for serious online harms including defamation, death threats and harassment and this decision confirms that ability."

'False, discredited and malicious conspiracy theory'

Giustra, who made his money in the investment and resource sectors, is the founder of Lionsgate Entertainment, one of the world's largest independent film companies. The philanthropist is a member of the Orders of both British Columbia and Canada.

He filed the defamation lawsuit in April 2019, seeking an order to force Twitter to remove tweets he claimed painted him as "corrupt" and "criminal."

He claimed he was targeted by a group who vilified him "for political purposes" in relation to the 2016 U.S. election and his work in support of the Clinton Foundation. 

The online attacks allegedly included death threats and links to "pizzagate" — a "false, discredited and malicious conspiracy theory in which [Giustra] was labelled as a 'pedophile,'" the claim stated.

Twitter responded by trying to get the claim thrown out over jurisdiction, accusing Giustra of relying on B.C. roots to file the case in Canada because it would be a non-starter in the U.S., where the First Amendment protects free speech.

The company claimed he would have been mostly affected in the U.S. where he spends much of his time, owns extensive property and has substantial interests in the entertainment industry — meaning B.C. is only tangentially connected to the matter.

Twitter said the tweets in question were mostly posted and consumed by Americans. 

The appeal court ruling says Twitter argued the company was not the creator of the content Giustra is suing over, but had "merely provided the platform and cannot reasonably be expected to be aware of the reputation and location of any given person mentioned on its platform."

A 'metaphorical' elephant in the room

At the outset of the ruling, the Appeal Court judges addressed what they called a "metaphorical" elephant "lurking in the corner of the room" — U.S. freedom of speech laws that mean any other decision would torpedo Giustra's quest for justice.

"Under U.S. federal law, any action brought against Twitter for defamation in the United States is doomed to fail," Justice Christopher Grauer wrote for the Appeal Court judges. 

"And any libel judgment obtained against Twitter elsewhere will not be enforced by the courts of California or any other American jurisdiction."

Grauer said "a real and substantial connection between the case and British Columbia is revealed" through Giustra's professional reputation in B.C. and the "large audience" that Twitter publishes to in the province.

The judges pointed out that even news articles from American publications Twitter filed to establish a "United States context" referred to Giustra as a "Canadian based in Vancouver."

Twitter asked the appeal court to take into account the fact that America's first amendment laws would preclude Giustra from filing a defamation lawsuit in California and that American courts would not enforce a B.C. ruling in his favour.

Grauer said that didn't make his claim "a pointless exercise, for Mr. Giustra would at least have the opportunity to obtain a judgment vindicating his reputation — an opportunity denied from the outset in California."

Despite the lawsuit, Giustra maintains a Twitter account with nearly 30,000 followers.

The court filings include a letter he wrote to Twitter chief executive officer Jack Dorsey in April 2018, asking him to make his case a priority.

"As Twitter's CEO, I ask that you now investigate the source of these past and ongoing attacks against me — whether they are the result of individuals, a group, bots, or a combination of all three," Giustra wrote.

"I do not want to cancel my Twitter account — that would be a victory for those who are turning this incredible communication tool into a conduit for slander and hate.