VANCOUVER — Twitter is not responsible for allegedly defamatory tweets on its social media platform because it is not a publisher, the company is arguing in court documents responding to a B.C. billionaire’s lawsuit.

The documents, which also cite the company’s “commitment to free speech and expression,” offer the first substantial look at Twitter’s plan to defend itself in a case that could set a precedent for whether tech companies are responsible for defamatory content on their platforms.

In a statement of defence filed March 8 in the Supreme Court of British Columbia, Twitter “denies that it is a publisher of the tweets” that Frank Giustra alleged were defamatory. It argues that any claim for defamation should be made against the Twitter users who posted the messages on its platform.

The document is Twitter’s first direct response to Giustra’s allegations since he sued the company in April 2019.

Giustra—CEO of the Fiore Group of Companies, a private equity firm, and founder of Lionsgate Entertainment—had “a valued and unblemished reputation” thanks to his business and philanthropic work, he said in an amended statement of claim. In the run-up to the 2016 U.S. presidential election, Giustra claimed, a group of people targeted him on Twitter “for political purposes,” in part because of his support for the charitable work of former U.S. president Bill Clinton and Hillary Clinton, the Democratic Party candidate against eventual victor Donald Trump. 

“Twitter began publishing a number of false, defamatory and malicious tweets” about him, Giustra’s claim alleges, connecting him to the false Pizzagate conspiracy theory. Some tweets labelled him a pedophile and others included death threats. He asked Twitter to remove the tweets and prevent future ones of a similar nature. 

The company removed some of the tweets. However, Giustra’s lawsuit claims, it didn’t effectively remove all of them, or prevent more from being published. He alleged people around the world read the tweets, which “have damaged [Giustra’s] professional and personal reputation.” The company’s refusal to do as Giustra asked “has resulted in significant emotional distress and anxiety” for him and his family, and “constitute[s] harassment,” according to the suit. None of the allegations have been proven in court. 

In its statement of defence, Twitter denied Giustra’s allegations. The company said it is not a publisher and did not publish any statements about him. It denied that some of the tweets in question were about him, noting that Twitter users tend to include hashtags to categorize tweets or tag accounts to bring them to someone’s attention. 

It also denied the tweets were defamatory, and argued it doesn’t know whether the authors of the tweets knew the content was true or false, or whether they acted maliciously. Twitter claimed “right-thinking members of society” and any “reasonable person” would not lower their opinion of Giustra based on the tweets, many of which “contain incoherent statements.” Additionally, the company argued, some of the tweets were true, were fair comment on a matter of public interest or were made in jest. 

Twitter’s defence further states that Giustra agreed to the platform’s terms of service when he created his account in late 2012. Those terms say it “is not liable” for third-party content, and limit the company’s aggregate liability to US$100 or what a user paid to Twitter over the prior six months.

The company also argued it does not have a duty to remove any content from its platform before a judge rules it defamatory. Asking it to remove tweets whenever someone alleges they are defamatory “would censor legitimate speech and is contrary to [Twitter’s] commitment to free speech and expression,” according to the document.

Neither Giustra, Twitter, nor lawyers for either side responded to requests for comment before publication.

Twitter’s commitment to free speech has been in the spotlight as Tesla CEO Elon Musk moved to take Twitter private for US$44 billion. After it agreed to his takeover, Musk took to the platform to support it as a space for “free speech,” criticizing what he called its previous censoring of it. Musk’s proposed direction has led to concerns that the platform may ignore “violent and abusive speech,” especially against marginalized groups, and could turn into a “cesspool” without moderation.

Giustra’s lawsuit “signals that Canadian courts will soon have to grapple with social media companies’ liability for defamatory statements posted on unmoderated platforms,” lawyers at at Toronto-based law firm Torys wrote last year. 

The issue in Canada is different than in the U.S., where the First Amendment to the Constitution and Section 230 of the Communications Decency Act protect social media companies from defamation suits. Canada’s federal government is currently consulting on a plan to regulate online content it deems harmful, after earlier efforts to draft legislation drew criticism at home and abroad, but that effort is expected to focus on things like hate speech, sexual exploitation and terrorism.

The Giustra matter could also open the door to other defamation claims in Canadian courts against publishers and platforms based outside the country.

When Giustra filed his original lawsuit in B.C.’s Supreme Court in 2019, Twitter argued the court lacked jurisdiction over the case, and that it should be heard in California, where the firm is headquartered, and where Giustra “has a significant presence and reputation.” In January 2021, the court’s Justice Elliott M. Myers ruled it “has jurisdiction over the claim.” 

Twitter appealed, but that December, the B.C. Court of Appeal upheld the lower court’s ruling, giving Giustra’s lawsuit the green light to proceed in the province.

“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 in a statement at the time. “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.”

Along with legal costs and other relief, Giustra is seeking mandatory permanent injunctions that would force Twitter to delete the tweets and prevent others like them from being published.