LEFT WING CRITIQUE, IT'S CANADA

Canadian lawyers accusing Twitter of stifling free speech score first victory in novel lawsuit

Story by Tom Blackwell • 

It is a special kind of outrage in this digital age: the reaction to being blocked or censored by a social media platform like Twitter. Some Americans, including ex-president Donald Trump, have resorted to legal action to fight what they consider a breach of their freedom of expression.


A scene from B.C.-made documentary The New Corporation, whose makers are suing Twitter for refusing to run a paid tweet promoting the film.

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But in citing their constitutional rights those litigants have all faced the same immutable hurdle. The United States’ first amendment, like the Charter of Rights and Freedoms in Canada, applies just to government, not private individuals or companies.

No one has a constitutional right to tweet.

But a unique Canadian lawsuit that just scored its first win in the courts is taking a creative new approach to the issue, claiming that Twitter is breaching contract law — not the Charter directly — with its alleged restrictions on free speech.

The case is challenging Twitter’s decision to refuse to run a paid tweet for a B.C.-made documentary — The New Corporation — that’s critical of large corporations. The company tried to have the legal action thrown out, but an Ontario Superior Court judge recently ruled it had enough merit to move ahead.

The novel legal approach could be applied in countries throughout the world with similar constitutions, argued Sujit Choudhry, one of the two lawyers spearheading what he calls a “global test case.”

“The stakes are high for Twitter,” he said. “If the door is opened to a Canadian court to second-guess Twitter’s use of its platforms … it won’t be the last case.”

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Meanwhile, he and Joel Bakan, the other lawyer behind the suit and the movie’s producer, say they’re struck by the fact the company has vigorously opposed a legal action aimed at increasing freedom of expression on the platform — as new CEO Elon Musk boasts of being a “free-speech absolutist.”

A Twitter spokesperson could not be reached for comment by deadline.

But in written legal arguments , the company says there is nothing in contract or any other law that obliges it to let users do and say whatever they want on the site. In fact, a court that imposed such a requirement would be breaching the platform’s own freedoms, says the factum submitted to court by the firm’s Toronto lawyers.

“Twitter retains absolute discretion to decide which tweets can and cannot be promoted,” they argue. “Asking this Court to order that Twitter sell the Applicants an advertising product is antithetical to the freedom of expression protected by … the Charter.”

Several social media users in the U.S., where the constitutionally enshrined right to free speech knows almost no bounds, have tried to fight legally when their posts have been censored or their accounts suspended or cancelled. And lost.

A judge rejected Trump’s challenge of his Twitter ban last May, noting that the constitution does not apply to private companies and that the former president had failed to prove it was somehow working in concert with government.

The civil-rights-focused Chandra Law Firm says on its website that potential clients often ask if they can sue social media sites for violating their first-amendment rights. “The answer is always ‘no.’ Not if you expect to get anything out of it, anyway…. Please do not contact us about this.”

In the Canadian case, a boutique, one-woman ad agency in Vancouver tried to buy paid tweets to promote the well-reviewed documentary , which is partly funded by the federal government and available on the Crave cable and streaming service. Paid tweets look like regular ones but are given increased reach and are targeted at specific audiences. Twitter refused, citing in part its political and inappropriate content rules.

The film’s producers were welcome to advertise with “organic,” free tweets, but Twitter believes that getting wide reach for political messages “should be earned, not bought.”

Bakan says the platform does not overcome free expression problems by offering less-restricted use of organic tweets, as they are not nearly as effective as the paid ones.

In court, the group then argued that the company had violated contract law, largely because such agreements — even if not protected directly by the constitution — must still comply with basic constitutional and legal values under the “doctrine of public policy.”

A Mafia payment to murder someone, for instance, or a trust that doesn’t allow Black people to participate are contracts that would not be recognized by the courts under the doctrine, said Bakan.

“The (Supreme) Court has said that contract clauses that violate constitutional values violate public policy and shouldn’t be enforced,” he added. “These clauses that Twitter is relying upon and even more so the absolute discretion they’re claiming completely negate freedom-of-expression values, and that violates public policy.”

While the documentary at the heart of the case offers a left-wing critique of capitalism, Choudhry and Bakan say their arguments apply equally to conservative content on Twitter.

The company responds first that there was no contract between the parties, since it never accepted the request for a paid tweet. But even if there was a contract, the public policy doctrine would not apply because it is triggered only if there is “illegality, immorality, restraint on trade, injury to the state or injury to the justice system.”

That Twitter continued to fight the lawsuit — and argue it has “absolute discretion to muzzle any speech they want” — even after Musk took over in October suggests it has more on its mind than just open expression, said Bakan.

“He wants free speech, but he wants even more that courts and government should not be deciding what free speech is on his platform.”