by Joel Bakan
Joel Bakan is the writer and co-director of The New Corporation, and a professor of law. He is acting as lawyer in our lawsuit – which Twitter never saw coming!
It was definitely one of the more surreal moments of my life in law, representing, along with co-counsel Sujit Choudhry, Cool World and Kat Dodds in a legal battle against a big (and currently chaotic) corporation, Twitter. This case is about a massive corporation acting undemocratically to censor a film that is about massive corporations acting undemocratically. It’s an unfortunately necessary sequel to an unfortunately necessary sequel. It’s kind of like it walked right out of the film.
The case began with Twitter barring Cool World from promoting a Tweet with a link to the trailer for a feature documentary film, The New Corporation, that I wrote and co-directed with Jennifer Abbott. Twitter claimed the trailer violated its ad policies on political content, inappropriate content, and sensitive targeting. Cool World challenged this in court, arguing that Twitter’s censorial actions violated free speech values, and were therefore unfair, in bad faith and against public policy. Twitter countered that our case should be thrown out and not proceed to trial. The platform had “absolute discretion” to ban whatever and whomever it wants from its platform, and that anything less would be a violation of its free speech.
The Court flatly rejected Twitter’s arguments, held that Cool World’s case should proceed, and that our core argument – that Twitter is effectively a “town square” for Canadian democracy, and that it acted discriminatorily and arbitrarily in exercising its power – was plausible and had a chance of success.
This is a hugely significant ruling. It affirms that, through the interaction of constitutional free speech law and contract law, there is a pathway to holding Twitter legally accountable for free speech violations. That pathway has been elusive in previous cases in Canada, the US and elsewhere (though a similar pathway has been recognized in a case concerning Facebook in Germany).
Importantly, we carefully constructed that pathway to ensure that only speech that Canadian courts have deemed to be of high-value and non-harmful – like The New Corporation trailer – is deserving of judicial protection from Twitter. We explicitly argued that Twitter should be free to restrict speech that is harmful and of low-value (as Canadian courts have understood those standards), such as that which is hateful, discriminatory, racist, misogynist, insurrectionist, and so on.
Finally, and I say this on behalf of Sujit as well, we want to recognize Kat’s courage in bringing this case against Twitter – in fighting for free progressive speech, not only for Cool World, but for many others, as the case is likely to develop into a legal precedent across Canada, and potentially around the world. Twitter may appeal this initial ruling, or, if they don’t, we’ll go directly to trial. At the moment we don’t know. But what we do know is that as we move forward with this case it’s Kat’s courage that will continue to drive it.