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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:

[137]   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.

[138]   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.

Draft guideline sets expectations for federally regulated financial institutions to manage technology-based risks

On November 9, 2021, the Canadian Office of the Superintendent of Financial Institutions (OSFI) launched a consultation on their draft Tech and Cyber Risk Management Guideline (B-13). This new draft guideline follows a previous consultation that sought feedback on the OSFI discussion paper Delivering financial sector resilience in a digital world.

The guidelines express OSFI’s expectations for federally regulated financial institutions across five dimensions:

1. Governance and Risk Management – Technology and cyber risks are governed through clear accountabilities and structures, and comprehensive strategies and frameworks. 
2. Technology Operations – A technology environment that is stable, scalable and resilient. The environment is kept current and supported by robust and sustainable operating processes. 
3. Cyber Security – A secure technology posture that maintains the confidentiality, integrity and availability of the federally regulated financial institution’s technology assets. 
4. Third-Party Provider Technology and Cyber Risk – Reliable and secure technology and cyber operations from third-party providers.
5. Technology Resilience – Technology services are delivered, as expected, through disruption. 

The consultation is open for comment until February. 

Summary judgment awarded to plaintiffs defamed by de-contextualized screenshot from personal video

In Lavallee et al. v. Isak, Justice M. Smith of the Ontario Superior Court of Justice presided over a summary judgment motion in a defamation case brought by the three plaintiffs against the defendant. The two adult plaintiffs were “play-fighting” with a third person and one of them took a short video of the other two, posting it to her Instagram account. One of her Instagram followers took a screenshot of a moment when the other plaintiff was facedown on the ground, her arms held behind her back by the third person who also had his knee pressed into her back. The Instagram follower circulated this screenshot, which came to the attention of the defendant. The defendant (who did not know the plaintiffs and never did see the entire video) circulated the screenshot on Twitter and Instagram, making numerous posts and re-posts denouncing the plaintiffs as racist because, in her view, they were mocking the death of George Floyd.

The posts attracted attention. Numerous people re-posted and commented on the plaintiffs’ character, racism and ability to perform their jobs. One plaintiff was fired from her job at the Canada Border Services Agency and could not obtain work with the RCMP or any other branch of the federal government. Another plaintiff, a teacher, was investigated by the Ontario College of Teachers, had a job offer rescinded from the Ottawa Catholic School Board, and lost her job at a restaurant. “The Plaintiffs’ home was vandalized, their neighbour’s car seriously damaged, and their friends and family were subjected to death threats and harassing phone calls and social media messages.” The plaintiffs brought an action in defamation against the defendant, and moved for summary judgment.

Justice Smith first examined whether the case was appropriate for summary judgment, which the defendant did not dispute. There was no issue that the defendant was the author of the social media posts and that they were about the plaintiffs, nor that the defendant had published the posts by sharing them on Instagram and Twitter. Justice Smith easily concluded that the defendant’s posts and re-posts (excerpted in detail in the decision) were defamatory in that they tended to lower the plaintiffs’ reputations in the eyes of a reasonable person. While the defendant argued that a reasonable person “would understand that the words spoken by the defendant were reflective of the context of the Screenshot of the video posted by the plaintiff,” the posts clearly stated and implied that the plaintiffs were racists, that they were mocking the death of George Floyd, and generally suggested improper conduct.

The defendant raised the defences of justification and fair comment, but the court held that neither defence was made out. The defendant had stated at discovery that she did not know the plaintiffs, never made any inquiry as to the background of the screenshot, and never actually saw the video, while nonetheless being convinced it was racist. While one of the plaintiffs had made an “apology” on social media, the judge held that understood in context, the apology was a justifiable response to the backlash she had experienced, and she had always maintained there was no racist intent or content in the video. The judge also held that the actions of the plaintiffs’ employers were evidence of no more than the employers’ opinions, and did not constitute “evidence that an alleged act of racism is true.” The plaintiffs’ own affidavits explained the entire video and its context, and proved that there was no racism contained in or implied by the video. The defence of justification was therefore not made out because the defamatory statements untrue.

As to the defence of fair comment, while the subject was one of public interest, there was no factual foundation for the defendant’s comments. Moreover, the posts were framed not as expressions of opinion, but as statements of fact. Even if they were opinion, they were not such that any person could honestly express on the proven facts, and the fact that other people agreed with the statements was not evidence that proved anything.

The judge awarded a total of $50,000 each in general damages to the plaintiffs, summarizing the findings on damages as follows:

[92] [The defendant]’s use of her social media accounts gave her tremendous power to harm Justine and Shania’s reputations. Not only were her posts viewed up to 40,000 times, but [the defendant] increased her followers from 2,000 to approximately 5,000 people in a matter of days. Justine and Shania’s losses are significant. [The defendant]’s conduct was inappropriate including vicious and relentless attacks on Justine and Shania’s reputations. [The defendant] used a powerful medium to publish her defamatory remarks, she encouraged others to assist in the termination of employment, she posted personal information, she refused to stop posting and she targeted family members.

The court declined to order aggravated or punitive damages on the basis that the defendant’s actions were not malicious but motivated by naivete, impulsivity and misguidedness. However, Justice Smith did impose a permanent injunction requiring the defendant to take down the posts and prohibiting her from posting any other defamatory statements about the plaintiffs; in light of the defendant’s “aggressive online defamatory campaign and her continued belief that Justine and Shania are racists, I find that there is a likelihood that [the defendant] may continue to publish defamatory statements about Justine and Shania, despite my findings in this decision.”

Men charged with obstruction of justice for posting recordings of court proceedings on Instagram

It was recently reported that Toronto police charged four men with obstruction of justice, failing to comply with a publication ban and intimidation of a justice system after they allegedly posted recordings of court proceedings on Instagram. A statement by the Toronto Police Department advised that two Instagram accounts had posted pictures of a witness testifying at a preliminary hearing held on Zoom, and later posted audio recordings from a related hearing.

Recent amendments relax cross-border restrictions 

In October and November, the government of British Columbia introduced and passed Bill 22, the Freedom of Information and Protection of Privacy Amendment Act, 2021 that significantly alters the public sector privacy and access law for the province. Most notably for technology law practitioners, the Bill repealed the data sovereignty limitations found in sections 30.1 and 33.1 of the Freedom of Information and Protection of Privacy Act. In their place, a replacement section 33.1 has been added:

Disclosure outside of Canada

33.1 A public body may disclose personal information outside of Canada only if the disclosure is in accordance with the regulations, if any, made by the minister responsible for this Act. 

Another amendment permits the temporary disclosure of information for machine processing outside of Canada and specific rules for metadata: 

33 (2) A public body may disclose personal information in any of the following circumstances: …

(u) if the disclosure is necessary for the processing of information and the following apply:

(i) the processing does not involve the intentional accessing of the information by an individual;

(ii) any processing done outside of Canada is temporary;

(v) if the information is metadata and the following apply:

(i) the metadata is generated by an electronic system;

(ii) the metadata describes an individual's interaction with the electronic system;

(iii) if practicable, information in individually identifiable form has been removed from the metadata or destroyed;

(iv) in the case of disclosure to a service provider, the public body has prohibited subsequent use or disclosure of information in individually identifiable form without the express authorization of the public body;

So far, there has been no indication when (or whether) the government intends to introduce regulations related to the disclosures outside of Canada as contemplated under the replacement section 33.1.

Witness obscures, conceals text messages during Zoom trial, held to have fabricated evidence

The leap to doing hearings and even trials via online platforms such as Zoom has been a significant one, but many matters have proceeded in this way throughout Canada and generally seem to produce solid and uncontroversial results. This was not the case in a recently reported family law matters, which demonstrated some of the problems that can arise when doing “virtual” trials while at the same time showing that witness credibility issues can be dealt with nonetheless in that setting. In Oremush v. Hickey, Justice Audet of the Ontario Superior Court of Justice presided over an application by a father to vary custody conditions regarding his child, which had been imposed in a previous court decision. The three main witnesses in the trial, which proceeded on Zoom, were the father, the child’s paternal grandmother, and the mother; the trial judge held that none of them “had much credibility.”

A week before the trial, the mother had reviewed a series of text messages between the father and mother that had been disclosed by the father, and proceeded to upload “her own version” of the text exchange. That version included a number of very damaging admissions made by the father as to the parents’ comparative parenting ability, his motivations, etc. The father vehemently denied that he had sent the damaging texts and stated that they had been fabricated by the mother. The mother in turn denied this, stating that she had taken screenshots of the texts directly and emailed them directly to her lawyer. “Therefore,” Justice Audet observed, “the authenticity of the mother’s text messages became a key issue in this trial.”

During cross-examination of the mother by the father’s counsel she was asked to show the court the text messages. She first denied that she still had them and stated that she had deleted them some time ago, and continued to refuse to admit she still had them. Her testimony became increasingly suspect:

[45] … When asked to show her cell phone to the camera and scroll down slowly so we could see how far the text message exchanges between her and the father went, it became obvious that the mother was keeping her finger on the screen of her phone to make sure it could not scroll down past a certain date. 

[46] It took a lot of direction (including eventually by myself) for the mother to finally remove her finger from the screen and to stop interfering with her phone to allow everyone to see the string of messages. It became clear that she did, in fact, still have all of her text messages going back years.

[47] The mother then became very defensive and agitated. She started to question the purpose for which she was required to do this, became belligerent with opposing counsel, and quite flustered by the process. When directed to go to a specific date in July 2020, the date at which one of the very damaging messages had purportedly been sent to her by the father, she started to give all sorts of explanation as to why it “might” not be there anymore (while searching for the particular date on her phone), including that she had also exchanged many text messages with the father using her iPad (which, conveniently, was now in the possession of her parents in Nova Scotia).

Things went from bad to worse when the mother insisted on a break to feed her child, at which point the court granted a request that her camera be kept pointed at the phone during the entirety of the break, during which time the father’s counsel’s associate was to pick up the phone. When the trial resumed it was noted that the mother’s camera had been disconnected for 4-5 minutes during the break, and that when the phone was examined at the father’s counsel’s office, “all text messages between the parties that the phone ever contained had been entirely wiped out.” The judge held that the mother’s evidence (like that of the father and grandmother) was completely lacking credibility, in part based on the following:

[53] From the above, I come to the following factual findings:

• The mother’s version of the text messages exchanged between her and the father is not authentic. Those messages were fabricated by the mother or someone else at her behest;
  
  
• The mother lied to the court when counsel was trying to get her to access the text messages on her phone. She deliberately tried to conceal the history of messages and, when she failed, she lied by saying that she could not access them before;
  
  
• During the lunch break, the mother intentionally disconnected from the Zoom call just long enough for her to delete all the text exchanges between her and the father that her cell phone contained. I find that she (or someone for her) erased all those messages, in clear breach of my specific order.

2021 CAN TECH Fall Conference recordings are now AVAILABLE.

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Unhappy plastic surgery patient held to have defamed surgeon in web reviews

In Peterson v. Deck, Justice G.P. Weatherill of the British Columbia Supreme Court presided over a summary trial in a defamation case brought by a plastic surgeon against a patient who was dissatisfied with the result of her breast augmentation surgery. The defendant had posted comments about the surgeon’s work on both her own website and in Google Reviews, in which she suggested he had made fundamental errors in his consultation with her and the surgical work, and generally imputing that he was incompetent. She defended on the basis of justification, fair comment and qualified privilege.

Justice Weatherill first dealt with the defendant’s argument that the claim was barred by the B.C. Protection of Public Participation Act, the province’s “anti-SLAPP” legislation which is designed to ensure valid commentary on issues of public interest is not suppressed by well-resourced defendants bringing legal proceedings. He accepted the defendant’s argument that “a consumer review of a plastic surgeon’s skills is within the ambit of public interest,” citing earlier authority for the proposition that:

Online reviews of goods or services offered to members of the public… are commonplace on Google or other web sites. While much of the general public may not be interested in [such] reviews…, it is enough that some segment of the community would have a genuine interest in receiving information on the subject.

However, the claim was not sufficiently in the public interest to meet the requirements under the Act, because the claim had merit and the harm to the doctor’s interests outweighed the value of protecting the expression:

This action was not brought to stifle or frustrate the defendant’s freedom of expression or prevent her from making reviews or participating in matters of public debate. Consumer reviews, as a general principle, ought to be encouraged and there is a very real danger of a chilling effect if they are curtailed. However, such reviews should not be left unbridled. Online review platforms are not a carte blanche to say whatever one wishes without potential consequences. This case was brought to vindicate the plaintiff’s reputation as a plastic surgeon in light of the Posts.

On the main claim, the court easily found that the posts were defamatory, given that they would tend to lower the reputation of the plaintiff in the eyes of the public. Justice Weatherill found that the posts had been “published” in spite of little evidence being led on whether anyone had read the reviews; however, they had been read by the surgeon’s administrative assistant, and the defendant herself had received responses to them and stated publicly that they had “gone viral,” which the court held to be sufficient.

Moving on to defences, Weatherill J. held that justification/truth was not available to the defendant, since the evidence indicated that she had made factual statements that were demonstrably false, regarding what had been discussed with her by the surgeon and what had taken place during the surgery. Nor was fair comment available, since the subjective opinions the defendant expressed in the posts were based on untrue facts. The court held for the plaintiff on liability.

As to damages, Weatherill J. noted that “the defendant published the Posts using the internet, a medium with tremendous power to harm a person’s reputation by spreading falsehoods far and wide,” and imposed damages of $30,000.00. He also imposed a mandatory injunction requiring the defendant to take down the posts and not place them anywhere else.

Methodology problems result in exclusion of survey results in trademark dispute

At issue in Tokai of Canada Ltd. v. Kingsford Products Company, LLC, was the admissibility of evidence that was generated by a consumer survey, which was designed to test consumer reaction to the use of the word “KING.” The plaintiff was trying to register this as a trademark for barbeques and butane lighters, but the defendant objected based on its numerous trademarks with the word “KINGSFORD” used with similar products. As fresh evidence on judicial review the plaintiffs had sought to lead expert evidence of an internet survey that comprised 707 interviews with consumers who had purchased, or planned to purchase, a butane lighter. Justice Fuhrer noted that as a survey evidence is a species of expert opinion evidence it must meet the usual requirements for admissibility, and:

Further, to be considered relevant, the survey must be both reliable (in that if it were repeated it would produce the same results) and valid (in that the right questions were put to the right pool of survey participants in the right way and in the right circumstances to produce the evidence sought)[.]

Here, there were both validity and reliability problems with the survey evidence proffered, which “highlights the challenges in attempting to simulate a consumer’s imperfect recollection at the time when they encounter the products and trademark in issue in the marketplace.” There were four particular deficiencies. First, the survey referred only to “butane lighters” but it might not have been clear to the average consumer, who was in a hurry, whether this referred to cigarette lighters or utility lighters, which could have skewed results. Second, some completed surveys were pulled from the results evaluated because the market researcher conducting the survey judged they had been “completed too quickly,” yet quick completion was likely to be a feature of a survey which was meant to capture the first impressions of the average, hurried, consumer.

Third, some survey participants were permitted to take many hours to complete the survey, which again was incorrect methodology for a survey meant to obtain first impressions. Finally there were contextual and other gaps in some survey questions. For example, “[t]he manner in which the survey participant was shown the brand name KING online [was] not reflective of the manner in which the trademark would be encountered in the marketplace in the applicable circumstances (i.e. on packaging or the goods themselves, potentially along side other similar products, such as on a store shelf).” In particular, an online survey, Justice Fuhrer felt, was not a good means by which to emulate how consumers would encounter the goods in a store, as opposed to a commercial website. Due to all of these flaws, the evidence was not sufficiently reliable or valid, and thus was excluded.