Joel Bakan and co-counsel Sujit Choudhry hope to expand how the Charter applies to a private company
Canadian Lawyer spoke with Joel Bakan, a University of British Columbia law professor, and Sujit Choudhry, a constitutional lawyer, about their ongoing lawsuit against Twitter. Twitter rejected promotional tweets for a trailer for Bakan’s movie, which he says violated free speech principles that Twitter should uphold as a de facto town square. Bakan and Choudhry practise at Hāki Chambers Global.
Tell me about your backgrounds and Hāki Chambers
Choudhry: The vision behind the chambers is that we are a network of senior scholars and practitioners working on high-level advocacy to increase diversity in the legal profession. Our international focus will primarily be on cases and issues arising from the Global South.
Joel and I are Canadian, though, and a considerable part of what we do is Canadian public law test case litigation. I have a broad public law practice, including the Emergencies Act, representing clients in Afghanistan, homeless clients, etc.
Bakan: My specialty is constitutional, labour, private and contract law. My first loyalty and obligation are to UBC as a law faculty member. At Hāki Chambers, I work on domestic Canadian public law issues.
Joel - tell me about your documentary The New Corporation
Bakan: This is the sequel to The Corporation, released in 2003. The second movie came out in the middle of the COVID pandemic, which is not a great time to release a film. In Canada, it is currently on Crave, which is a great home for it. And it's distributed in the United States and internationally on all the big streaming platforms.
It picks up the story from the first documentary where we analyzed the corporation. In the intervening years, corporations have pushed back against our original analysis. They've said, “No, we're actually the good guys. We're actually able to help save the world, to solve world hunger and climate change and all these things.”
On the surface, it looks like a good thing, and in some ways it is. But in the film, we look at what may be a more negative side of it. Corporations are acting more like governments now. That has helped promote the agenda of corporations to privatize and deregulate.
What happened when you tried to advertise the documentary on Twitter?
Bakan: We rehired a small publicity firm, Hello Cool World, that helped with the first film. They tried to place a promoted tweet for the film. Twitter rejected us six times. We had a kind of Kafkaesque exchange with Twitter, where they denied it under various internal policies. After we exhausted all the internal complaints processes, we decided to litigate.
So, we sued Twitter in the Ontario Superior Court in August 2021. And then Twitter moved to strike our motion.
Tell me about the case
Choudhry: After we filed the claim, Twitter brought a motion to strike, arguing that even if the facts as pleaded were true there was no cause of action.
The hearing was on December 13, 2022. Twitter essentially argued that there is no contract, that under the user agreement, there's a clause that gives Twitter absolute power to remove content and that the ad policies on their website are just guidelines.
Our counterargument was that there was a contract and these ad policies aren't just guidelines. They are the terms of the contract.
Our legal argument focused on the interpretation and application of those policies.
We relied on some well-established areas of contract law, including the doctrines of good faith, public policy and unconscionability. We argued that Twitter’s ad policies are contrary to public policy and are therefore invalid because they encroach upon the Charter value of freedom of expression.
Applying freedom of expression to a private corporation is a novel idea
Bakan: It is revolutionary, but it draws upon a concept developed by courts worldwide. We based it on the idea that constitutional rights don't only apply vertically between individuals in the state but also horizontally among individuals.
It's a revolutionary notion because we usually consider constitutions binding individuals and the state. But it's also not revolutionary because, since the mid-1980s, the Supreme Court of Canada has been developing this jurisprudence. Dolphin Delivery is usually seen as standing for the proposition that the Constitution does not apply in the private world. Still, Justice McIntyre says that the constitution and Charter rights apply to the common law. The courts pick up that idea in several cases.
We think what Justice Myers said in his decision to strike Twitter’s notice is right. Our arguments should be heard on its merits and not stopped at this preliminary stage.
You argue that, unlike other media, Twitter has a “public square” role
Choudhry: Twitter markets itself and functions as Canada's town square. The critical part of the case is what Twitter is, what it's become, and how Canadian public institutions treat it.
Twitter has become the government's principal medium for engaging Canadians on social media. Canada’s prime minister has 6.3 million Twitter followers.
How does that argument apply in your case?
Choudhry: Unless you have a massive number of followers, like the prime minister, the only way to reach people at scale is through the purchase of promoted tweets. For my clients, The New Corporation trailer needed to end up in the feeds of potential viewers.
We also argued that Twitter applied policies in an arbitrary and discriminatory fashion. Twitter allowed other media entities to promote documentary films or TV serials with overtly political content like The New Corporation.
Is there a risk that courts will compel other media companies to produce content?
Bakan: I think not. Twitter is unique. It is not the CBC or Canadian Lawyer. It's not even Facebook. We live in a system where media companies have freedom of expression, which needs to be protected. Our only argument is that if you are a media company where people use it as a primary part of the democratic infrastructure of this country for public institutions to communicate with citizens, there needs to be free speech protection.
Choudhry: When we show people the movie trailer and the Twitter policies, they usually go, wow, why did they not run this? There's a common-sense aspect to all of this.
What’s next for the case?
Choudhry: We've been in this interlocutory stage for over a year, and it's time to move forward.
This type of case is much more legs outside the US. In the US, individuals have brought lawsuits against Twitter for suspending their accounts. Twitter's defence in those cases has been the First Amendment, and every court has ruled in its favour. What's going to be interesting is how courts outside the US govern platforms through private law.
*Answers have been edited for length and clarity.