McDonald's Bullies Local Canadian Burger Joint Over 'Filet O' Fish' Trademark

from the not-lovin'-it dept

It is perhaps a bit surprising that we don't have an absolute ton of stories about fast-food giant McDonald's here, given the sheer size and fame of the company. In fact, the last post we did about the company was in the wake of it having just lost its "Big Mac" trademark in the EU, a circumstance the company was obviously displeased with. Still, McDonald's has certainly not been shy about protecting its IP in the past, even occasionally to extreme lengths.

The most recent example of this behavior concerns McDonald's bullying a local Canadian food joint over its "Effing Filet 'O Fish" sandwich.

Paul Shufelt, the owner and chef behind the local Woodshed Burgers restaurant, wasn’t loving what he saw when he opened his email on Wednesday. In his inbox was a formal cease and desist from McDonald’s Restaurants of Canada over one of his restaurant’s burgers: the Effing Filet O’ Fish. The name of the burger, the letter argued, violated the registered McDonald’s trademark of the phrase Filet O’ Fish, the name of one of the fast food giant’s most prolific sandwiches.

“McDonald’s is concerned that your restaurant’s use of Effing Filet O’ Fish, particularly in association with a sandwich or burger menu item, is likely to cause confusion among consumers and is also likely to diminish and dilute the strength of McDonald’s trademark,” the letter read.

Okay, so a couple of things here. First, Woodshed is a tiny 40 seat joint that is a local eatery and isn't the kind of place one goes and is confused into thinking it's a McDonald's. Second, the "Effing Filet 'O Fish" sandwich at Woodshed is a fairly descriptive name, given that it's a sandwich chiefly comprised of an effing filet of fish. That point isn't quite so strong, since McDonald's can probably argue that it's use of the mark has transformed it from something generic to something closely associated with McDonald's.

But thirdly, if McDonald's thought this was going to get Shufelt to change the name to something McDonald's would consider innocuous, well...

In compliance with the cease and desist, Shufelt renamed his burger to the McEffing Fish Filet — his flippant way of complying with the massive company’s cease and desist.

“Let them come at us, I guess, and they can have a pissing match with a small, 40-seat restaurant in Edmonton over the name of a burger,” Shufelt said.

Great job, McDonald's lawyers. This is important work you're doing.

Filed Under: canada, effing filet o fish, filet o fish, likelihood of confusion, mceffing fish filet, paul shufeit, trademark
Companies: mcdonald's, woodshed burgers

Canadian Broadcasting Company Hits Conservative Party With Questionable Copyright Infringement Lawsuit

from the attacking-partisan-hackery-with-copyright-hackery dept

The Canadian Broadcast Company is back on its copyright bullshit. The publicly-funded broadcaster sure seems to enjoy the benefits of fair dealing -- Canada's fair use counterpart -- but it doesn't seem to like others availing themselves of same copyright exception while using clips from CBC broadcasts.

Over the years, the CBC has made some extremely dubious copyright-related claims. It tried to enforce its self-crafted licensing terms to forbid anyone from quoting CBC broadcasts and publications without its explicit permission. It backtracked pretty quickly when everyone chose to ignore its stupid policy and its petty demands for licensing fees. It granted an exception to "bloggers," whatever that means, and then quietly stopped griping about licensing fees.

A few years later, it made Techdirt headlines again by threatening podcast apps for "rebroadcasting" its podcasts -- something accomplished by the apps utilizing the CBC's podcast RSS feed. In essence, the threat letters claimed the loading of a URL into a podcast app violated CBC's copyright. It was pretty much the same thing as claiming Google violated CBC's copyrights by showing CBC URLs in its search results. Once again, everyone shrugged off the CBC's idiocy and returned to their daily business of not actually violating CBC's copyrights.

Here it comes again. Only this time there's a lawsuit attached, so it's going to be a bit tougher to shrug it off. Michael Geist reports the CBC is suing the Conservative Party of Canada for including short CBC clips in its YouTube videos.

The CBC has filed a copyright infringement lawsuit against the Conservative Party over the use of clips on its Not As Advertised website and the use of debate clips on its Twitter feed. The lawsuit, filed yesterday in federal court, claims that a campaign video titled “Look at What We’ve Done” contained multiple excerpts from CBC programming in violation of copyright law. Moreover, the CBC also cites tweets that included short video clips of between 21 seconds and 42 seconds from the English-language leaders’ debate. The CBC argues that posting those clips on Twitter also constitutes copyright infringement.

The CBC does not appear to be in the right here. ([extremely Fry face] not sure if pun intended or not.) Fair dealing would seem to allow this use of CBC clips, especially in the context of creating videos criticizing liberal politicians. What appears to be driving this case is the CBC's dislike for the Conservative Party, rather than any solid legal footing. Even the isolated clips embedded in Conservative Party tweets could be considered fair dealing since their use (21-42 seconds each) is clearly minimal and does not devalue the content nor prevent CBC from monetizing its copyrighted content.

That being said, Canada's fair dealing exception might have to tangle with another law, one pertaining to fair coverage of elections. If so, the Conservative Party might come out on the losing end because it edited clips to conform to its partisan narrative, rather than simply distribute unedited footage from CBC programming.

From the lawsuit [PDF]:

The respondents' use of copyright-protected material in the Infringing Material diminishes the reputation of CBC/Radio-Canada, its journalists and producers, and takes advantage of their respected integrity and independence in a way that undermines public confidence in Canada's national public broadcaster at a critical time: during a national election campaign in which their coverage must be seen, more than ever, as trustworthy, independent and non-partisan.

Selectively editing various news items together to present a sensational and one-sided perspective against one particular political party may leave a viewer with the impression that CBC/Radio-Canada is biased, contrary to its obligations under the Broadcasting Act.

This is a stretch. This assumes people not familiar with the Conservative Party will assume the edited clips were assembled by the CBC to make certain politicians look bad. That these edited clips would most likely be found with the Conservative Party's name attached makes it far less likely the uninitiated will view these as a partisan hack job performed by the publicly-funded CBC.

This argument flows directly into the CBC's claim of violated moral rights. Supposedly, the edited clips have "damaged" the reputation of the broadcast's producers and journalists, turning them into mouthpieces of a partisan group. In an era where politicians are even quicker to claim journalists are partisan purveyors of fake news, it's a legitimate concern. But it's also overblown in this context, where CBC clips are being used to highlight statements made by politicians, rather than by CBC journalists.

But here's the ultimate concern: the CBC is acting against its own interest by engaging in litigation that could further narrow the scope of the fair dealing exception. The CBC is definitely a beneficiary of fair dealing as it allows CBC to assemble broadcasts using a variety of sources without having to worry too much about being sued for copyright violations. This is an extremely short-sighted move that may pay off in ways the CBC doesn't particularly like, even if it secures a judgment against the Conservative Party. Be careful what you sue for. You just might get it.

Filed Under: canada, conservative party, copyright, fair dealing, free speech
Companies: cbc

Canadian ISPs Continue Quest To Bankrupt TVAddons, Site That Hosted Tons Of Legal Kodi Addons

from the crazy-stuff dept

A few years back we wrote about how various Canadian telcos had appeared to completely lose their minds over TVAddons, a Canadian site that hosted various software add-ons for Kodi (open source home theater software that was originally the Xbox Media Center or XBMC). Now, it is true that there's a thriving market in pirated content via Kodi boxes and the like, but TVAddons was just a site that hosted all sorts of add-ons, and most of them had nothing at all to do with infringing content. As we mentioned in our original article, out of over 1,500 add-ons, only 22 were found to involve infringing content. To put this in perspective, think of the VCR/Betamax in the early years, when Jack Valenti was insisting that it would be the "Boston Strangler" to the movie industry. Back then, a ton of the content being passed around on those tapes would likely be considered infringing -- in part because that was before the industry learned to embrace home video (which quickly became a huge moneymaker for Hollywood). But that was found legal because, as the Supreme Court noted, there were "substantial non-infringing uses" of the technology. It seems pretty damn clear that there are "substantial non-infringing uses" of Kodi add-ons as well, and especially of a platform like TVAddons, that was there just to host those add-ons -- and not to host any infringing content directly.

However, as we noted in that original piece, it seemed quite clear that the Canadian telcos were so hellbent on destroying TVAddons and its founder, Adam Lackman, that it didn't seem to care about any of this. They got a special "Anton Piller" order in Canada that allowed their own private investigators to search his home and take his stuff. While this was going on, Lackman called his lawyer, and the lawyers for the telcos literally ordered him to hang up and not talk to his lawyer. As we noted, this wasn't the police -- this was private companies ransacking a guy's house, because some people might possibly use some software that was hosted on his open platform for possibly infringing uses.

Years later, it's perhaps not surprising that these Canadian telcos -- namely Bell Canada, Rogers, Videotron and TVA -- appear to have no interest in letting this case end. They remain hellbent on destroying Lackman and the site. While Lackman initially won the first round of the case, in which a court noted that the Anton Piller order was clearly unlawful, he lost on appeal, and was told he needs to pay the legal fees of the giant telcos, even though no actual trial has taken place (all of this is on preliminary issues)

Lackman has now been left in the unenviable position of having to set up a GoFundMe just to try to raise enough to pay for the giant telcos legal fees, let alone continue the actual legal fight. The whole setup is ridiculous: giant companies (who never even sent a takedown notice to TV Addons) get to do a private raid, take all of his stuff (which was later recognized as against the law), block him from talking to his lawyer, and then bankrupt him through an ongoing legal process.

This kind of story, of course, is not unique. We've seen it play out in many different ways over the years, but it's particularly galling to see how it's playing out here.

Filed Under: adam lackman, addons, anton piller, canada, kodi
Companies: bell, rogers, tvaddons

Canadian Brewery Changes Name Of Brew Due To Peanut Butter Company Bully That Doesn't Ship In Canada

from the drunk-or-nuts? dept

We've been talking about the trademark crisis facing the craft brewing industry for some time. To recap, an industry explosion coupled with the habit of that industry to come up with creative and referential names for its products has collided with trademark attacks coming both from within and outside of the industry. The industry, which once had a quite permissive and fraternal approach to intellectual property, has since become corporatized. New entrants to the market, therefore, face challenges with how to name their craft beers without facing legal threats.

This is where it's worth repeating that trademark law is chiefly designed to keep the public from being confused as to the source of affiliations of a good or service. In other words, the brand name of a product shouldn't fool the public into thinking it came from somewhere it did not. That reality makes it quite frustrating to see Off Track Brewing agree to change the name of one of its signature brews due to threats issued by a peanut butter brand.

When the guys behind Off Track Brewing came up with a stout beer, using real peanut butter as the key ingredient, they needed a name.

"We were brainstorming one day, and Jon just said, 'You know what, Damn Skippy, it's just jumping out to me, it'd be a really good name,'" said Allan MacKay of Off Track Brewing in Bedford, N.S.

You already know what happened. Damn Skippy jumped in popularity, leading some to comment on the brew on social media. There, whatever legal team the Skippy peanut butter people had contracted with took notice and fired off a cease and desist notice to Off Track. It never got to the litigation level, as Off Track agreed to change the name of the brew. Normally, this is where our post would point out that the beer-buying public is certainly not going to confuse a creatively named peanut butter stout beer as having anything to do with Skippy brands, not to mention that the two products are in wildly different market arenas. All of which ought to have been sufficient to push back on the C&D and even for Off Track to have its day in court, if it wished.

But even if you don't agree with my assessment above, exactly how much potential confusion in the buying public could there be when that same Canadian public can't even buy Skippy peanut butter?

Even though Skippy peanut butter was discontinued in Canada two years ago -- months before the brewery opened -- the owners decided to give in after consulting their lawyer.

"We're gonna switch it up, so it's not a big loss," said MacKay. "The beer stays the same, which is good."

Part of the requirement to hold a valid trademark is that it be in use in the marketplace for commercial purposes. The Skippy people appear to very much be not using it in Canadian commerce. How, therefore, could there be any potential for customer confusion? And why, for the love of all that is peanut-buttery, did Skippy undertake this bullying to begin with?

Filed Under: beer, brewery, canada, damn skippy, peanut butter, skippy
Companies: hormel, off track brewing

Canadian Committee Publishes Ludicrous Fantasy Pretending To Be Copyright Reform Analysis

from the oh-come-on dept

Oh Canada. Not satisfied with a ridiculous plan to fine social media companies for ill-defined "fake news," a Canadian Parliamentary Committee has come out with one of the most laughable copyright reform papers I've ever seen. And I've seen some crazy ones. I'd post the whole report here, but the report itself warns that doing so might violate its copyright, and really, how could the Parliament be incentivized to create fantasy stories masquerading as copyright reform proposals without copyright?

Michael Geist provides the bizarre background on the origination of this report:

The Canadian government announced its plans for a copyright review in December 2017, tasking the Standing Committee on Industry, Science and Technology with the review. That report has been in the drafting stage for several months and is expected before the summer. In an effort to dampen concerns that Canadian Heritage would play a diminished role in the review, the responsible ministers asked the Industry committee to ask the Heritage committee to conduct a review on remuneration models for artists and creative industries. The formal request asked the Standing Committee on Canadian Heritage to “call upon the expertise of a broad range of stakeholders impacted by copyright to ensure a holistic understanding of the issues at play.”

Rather than providing the recommendations directly to the Industry committee as requested, the Heritage committee and chair Julie Dabrusin, a Liberal MP, chose instead to release its full report today. The report, which utterly failed to comply with the request to call on a broad range of stakeholders, is the most one-sided Canadian copyright report issued in the past 15 years, largely mirroring the approach of the discredited 2004 Bulte report that was subsequently rejected by the government.

The report is crazier than even I expected upon hearing the details. It doesn't even pretend that there might be some downsides to over-extending copyright law, or that there should be any exploration of the trade offs of various proposals at all. Instead, it insists that we NEED MORE COPYRIGHT in basically every possible place. As if to prove how laughable the entire report is... it actually recommends extending copyright terms -- something that even American copyright maximalists have mostly given up on (and whom, in quiet, will admit that perhaps copyright terms are already too long). But, that view is not even suggested in Dabrusin's dubious analysis of copyright. Indeed, the report admits that it didn't talk to a single person who didn't think extending copyright was a grand idea:

No witnesses expressed outright opposition to extending of the copyright term from 50 to 70 years after death.

If that's the case, you, uh, did not speak to very many witnesses at all -- and you certainly did not abide by your mandate to talk with a "broad range of stakeholders." Incredibly, the report quotes a musician -- uncritically -- who is flat out admitting that she just wants more money for work she did in the past:

Artist Miranda Mulholland said that extending the copyright term would be a “legacy move” that would give artists like herself “the ability to leverage their success.”

Existing copyright law in Canada allows Mulholland and her heirs to "leverage her success" for 50 years past her death. And she wants more? Come on. And, remember, copyright is supposed to be about an incentive to create. If life+50 was good enough for her to create when she did, why should she get extra benefits (by taking away from the public domain) afterwards? That makes no sense at all. But the report reflects none of that.

The report is also laughably credulous about the debunked concept of the "value gap", which is a meaningless phrase invented by the legacy record labels to mean "internet companies figured out how to innovate, while we just sued our best customers, and why aren't they handing us more money?!?" But, according to this report, it's a real problem that absolutely must be dealt with:

Witnesses from the creative industries spoke about a disparity between the value of creative content enjoyed by consumers and the revenues that are received by artists and creative industries. According to many witnesses, this disparity, which is known as the “value gap,” is growing.

According to Graham Henderson, President and Chief Executive Officer of Music Canada, the origins of the value gap extend back more than two decades. As creative industries shifted with the advent of the internet, copyright policy and protections became outdated and ineffective. Miranda Mulholland, artist and entrepreneur, aptly described, “the biggest reason for [the value gap] is that the laws in place today reflect a time of home phones, of scrunchies, and of buying a CD at a music store instead of today's world of streaming.”

That's silly. Canada went through major copyright reform in 2012. The idea that the laws reflect the 1980s is just silly. And wrong. So is the idea of a value gap.

The report falsely claims that there has been a "decline in the artistic middle class." This is absolutely laughable. As we showed in our recent Sky Is Rising report, the internet has enabled a massive new artistic middle class by allowing them to go direct to fans, and not rely on a single gatekeeper. Instead, there are lots of tools to create, to reach new fans, and to make money -- and all of the data suggests that's happening. What's telling is that nowhere in the report do they cite any actual statistics around this, but merely anecdotes. It's incredible.

The entire report is based solely on anecdotes and quotes from legacy industry insiders, who might have just a wee bit of bias in telling the Canadian government that it needs to force internet companies to pay more. Not surprisingly, this report endorses the approach the EU has taken with its new copyright laws: put all the liability on the platforms. Again, there isn't even an attempt to show why this might create problems or trade-offs -- just quotes in support:

Another approach to combatting piracy that witnesses raised is to involve the intermediaries in content distribution such as Internet service providers (ISPs). Witnesses described different methods to do so. For the Association nationale des editeurs de livres, ISPs ought to “inform their subscribers about copyright” and “[withdraw] access from non-compliers.” For representatives from the music and the film and television industries, the courts ought to be allowed to force ISPs to block access to the websites that allow piracy.

To further curb illegal copying or streaming, it was suggested profiting from the theft and sharing of rights holders' exclusive and copyrighted content on illegal streaming services be deemed a criminal offence.

Many witnesses also asked for modifications to the safe harbour provisions related to digital intermediaries and ISPs. The Committee heard that these provisions ought to be reviewed to ensure that these online services are held accountable for their role in diffusing content. The recommendation is linked to the theme of Canadian content previously discussed. Witnesses told the Committee that the Internet should not be seen as a set of “dumb pipes” and, rather, that ISPs “enjoy and greatly benefit from access to the music they give their clients.”

The whole report is an utter joke. It seems clear that it was written by someone who not only heard from one tiny set of views, but who is either woefully ignorant of the myriad views on copyright and its impact, or who purposefully tried to hide that. Either way, it makes this report not worthy of consideration by any legitimate legislative body.

Filed Under: canada, canadian heritage, copyright, julie dabrusin, middle class musicians, safe harbors, term extension, value gap

Canadian Border Agents Also Routinely Demanding Passwords From Travelers And Searching Their Devices

from the slightly-more-apologetic-rights-violations dept

In sad but unsurprising news, Canada is no better than the US when it comes to ignoring its citizens' rights at the border. The Canada Border Security Agency (CBSA) has also been given the green light to perform invasive, warrantless searches of people's devices at the border. And, like its US counterpart, it seems to be using this power frequently.

The CBSA said that between November 2017 and March 2019, 19,515 travellers had their digital devices examined, which represents 0.015 per cent of all cross-border travellers during that period.

Whether or not these numbers are on the rise is still a mystery. The CBSA only began tracking this statistic in late 2017 after Canada's privacy commissioner opened an investigation into this practice. Concerns were raised about the CBSA's searches, which involved cloning devices for later examination and seizing devices if travelers refused to hand over passwords.

Unfortunately for the CBSA, it searched the wrong person's device. A legal challenge is being raised by someone well-equipped to raise legal challenges, as CBC News reports.

"The policy's outrageous," said Toronto business lawyer, Nick Wright. "I think that it's a breach of our constitutional rights."

His thoughts follow a personal experience. After landing at Toronto's Pearson Airport on April 10, he said the Canada Border Services Agency (CBSA) flagged him for an additional inspection — for no stated reason.

Wright had just returned from a four-month trip to Guatemala and Colombia where he studied Spanish and worked remotely. He took no issue when a border services officer searched his bags, but drew the line when the officer demanded his passwords to also search his phone and laptop.

Wright refused, telling the officer both devices contained confidential information protected by solicitor-client privilege.

The end result was CBSA agents confiscating Wright's phone and laptop with the assurance they would be sent to a government lab in order to have their password protection cracked. Replacing them cost Wright $3,000.

Wright claims this is a violation of Canada's charter of rights. Canadian courts, like those in the US, have decided no involuntary sacrifice of rights is too great when national security is on the line. The CBSA, for its part, has greeted the tech future by pretending it's still 1975, and that searching a phone is no different than searching a briefcase or the trunk of a car.

For all of that, this is probably the right time to challenge this custom of customs officials. The nation's top court has already drawn a distinction between briefcases and cellphones, saying the latter contains vast amounts of information that "touches a person's biological core." And at least one provincial court has declared Canadians' rights are not null and void simply because they're at a border crossing.

The CBSA's statement to CBC News says these suspicionless searches that can result in the indefinite seizure of citizens' devices are "reasonable and necessary" to keep Canada secure. But they seem to be neither. There's nothing "reasonable" about invasive searches completely divorced from articulable suspicion. That's the very definition of "unreasonable." And as for necessity, all the CBSA has to offer is that 38% of its 19,000+ device searches "uncovered evidence of customs-related offences." This means most searches don't recover any evidence of anything and that things like undeclared goods are somehow threatening to the country's security.

It's time for border agencies to stop pretending the only way to secure a nation is to discard its citizens' rights. And it's time for courts to stop deferring to national security mantras and stick up for the rights they -- and the rest of the government -- are supposed to be protecting.

Filed Under: border searches, canada, device searches, electronics, passwords, privacy

Top Court Rules CETA's Lipstick-On-A-Pig Version Of Corporate Sovereignty Is Compatible With EU Law

from the it-may-be-legal,-but-is-it-moral? dept

Techdirt readers with good memories may recall the long saga of the EU-Canada Comprehensive Economic and Trade Agreement (CETA). One important moment was when Canada agreed to use the EU's proposed replacement for corporate sovereignty, the Investor Court System (ICS). Both are versions of so-called "investor-state dispute settlement" (ISDS), which allows companies to sue countries for alleged losses caused by government decisions. Although ICS was devised in order to blunt the growing criticism of traditional ISDS, it amounts to little more than lipstick on a pig. It still gives foreign investors unique legal privileges not possessed by local companies. However, as part of the deal to persuade the Belgian region of Wallonia not to veto CETA, the EU agreed to allow Belgium to ask the region's top court to rule on whether the new ICS was compatible with EU law.

As is usual in such referrals, one of the top legal advisers of the Court of the Justice of the European Union (CJEU) offered a preliminary opinion. In this case, Advocate General Yves Bot found that the ICS was compatible with EU law. The main CJEU has now issued its own judgment (pdf), essentially agreeing with Bot on every point. The key ruling is that, according to the CJEU, the ICS won't be able to overturn EU decisions:

the CETA contains provisions that deprive those [ICS] tribunals of any power to call into question the choices that have been democratically made within a Party to that agreement in relation to, inter alia, the level of protection of public order or public safety, the protection of public morals, the protection of health and life of humans and animals or the preservation of food safety, protection of plants and the environment, welfare at work, product safety, consumer protection or, equally, fundamental rights. Consequently, that agreement does not adversely affect the autonomy of the EU legal order.

That seems a little naive. It may be true, from a strictly legal point of view, but it ignores the reality of the situation. Even if the ICS cannot force an EU Member State to amend its laws, or change its decisions, it can impose fines for the "losses" an investor may suffer because of those moves. In such cases, a government may decide that it would rather repeal the law or cancel its decision than pay hundreds of millions of euros in fines. Even the threat of losing may be enough to convince governments to back down -- exactly as has happened many times with traditional ISDS. However, the Stop ISDS campaign points out:

The case against ISDS (or its rebranded version ICS) has never been primarily a legal one. It is a moral one.

ISDS allows multinational companies access to an obscure, parallel justice system closed to the rest of us. Calling it a court system for the 1% would be generous. It is really a court system for the 0.01%.

ISDS has allowed corporate interests to trump those of the public time and time again. Countries have been threatened for passing pollution regulations, approving health and safety measures and for hitting the pause button on fracking. It has been used to defend land grabs, environmental destruction and lock in privatisation of key public services.

None of these arguments depend on the opinion of the ECJ. The moral case is as strong as ever -- ISDS must go.

That's not a hopeless aspiration. As Techdirt reported earlier this year, the EU has already announced that corporate sovereignty claims can no longer be brought over internal EU matters. Meanwhile, the US seems to be cooling on the idea. So while the ICS has been blessed by the CJEU, it may be that corporate sovereignty is on the way out anyway.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: canada, ceta, cjeu, corporate sovereignty, ics, investor court system, isds

Canadian Billionaire Sues Twitter For Nasty Things Twitter Users Said About Him

from the threatening-free-speech-from-abroad dept

A wealthy Canadian businessman dragged into the ridiculous "pizzagate" conspiracy theory -- thanks to his ties to the Clinton Foundation -- is suing Twitter for harming his reputation. The lawsuit filed by Frank Giustra doesn't target the users posting these allegedly defamatory statements, but rather Twitter itself… as though Twitter were the publisher of the tweets, rather than just the platform carrying them.

Mr. Giustra’s civil claim argues that tweets that began around February, 2015, “vilified the plaintiff for political purposes in relation to the 2016 United States election,” attempting to discredit Mr. Giustra over his charitable work supporting the Clinton Foundation.

The five-page claim includes an appendix with the text of dozens of “false, defamatory, abusive and threatening tweets,” many of which, the claim reads, “Twitter has neglected or refused to remove.” Many tweets associate Mr. Giustra with the widely discredited “pizzagate” conspiracy theory that connected then-presidential candidate Hillary Clinton to a fictitious child-sex ring.

This sounds like the basis for some Canadian version of negligence, but a closer look at the claims shows Giustra is actually claiming Twitter itself is defaming and attacking him.

“The targeted attack on the plaintiff was part of an orchestrated campaign to discredit the plaintiff in part because of his charitable and philanthropic work in support of the Clinton Foundation,” the claim states. “Twitter began publishing a number of defamatory and malicious statements regarding the plaintiff.”

[...]

Twitter also published threatening posts, the court documents state, including one that specified Giustra should be killed with “2 bullets to the back of his head.”

From this, it's clear Giustra is trying to hold Twitter directly responsible for users' tweets. This is being done despite Twitter taking action to remove some of the tweets Giustra reported to Twitter. This legal attack gets everything backwards, but presumably it won't matter because it's been filed in Canada, rather than in the United States.

Thanks to the Equustek decision -- one that said Canadian court injunctions against American tech companies should be enforced worldwide -- social media companies are much more inviting targets for aggrieved Canadians. Giustra can claim Twitter published these statements because Canadian courts are more than willing to erase the line between third parties and the platforms hosting user-generated content. If a Canadian ruling applies everywhere, Section 230 immunity is simply ignored.

Giustra and his legal representation have admitted Twitter isn't the right target for this lawsuit -- just the most convenient one.

Taking action against the dozens of individual users, Mr. [Frank] Kozak said, would require “endless litigation,” and not address future defamatory tweets. As such, he said, Mr. Giustra decided to take action against Twitter itself.

Will the court side with a plaintiff taking shortcuts to justice? Who the fuck knows? According to the recently-signed but not-yet-ratified NAFTA replacement, the USMCA, Canada is required to provide Section 230-like safe harbors to internet sites, but is permitted to do so via "application of existing legal doctrines as applied through judicial decisions" rather than the creation of new laws — but whether that will sway the court, or if a finding of liability here will simply signal that Canada does need new laws to comply with the agreement, remains to be seen.

And it will put Twitter in the impossible position of policing content when it doesn't even know what exactly it's looking for. Giustra also wants a permanent injunction blocking any tweets containing potential defamation of him or his work. How Twitter is supposed to accomplish this is anyone's guess, but it won't be Giustra or the court burdened with the logistical details.

Giustra's lawyer claims this lawsuit isn't intended to "censor thoughts, ideas, or expressions." But it's hard to see how targeting Twitter for things users posted will result in anything else.

Filed Under: canada, defamation, frank giustra, intermediary liability, section 230, usmca
Companies: clinton foundation, twitter