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The producers of the 2003 The Corporation documentary and the 2020 follow-up The New Corporation: The Unfortunately Necessary Sequel have sued Twitter and the Canadian federal government for restricting political and social speech north of the border.
The legal action in the Ontario Superior Court follows Twitter rejecting “boosted” advertising posts featuring a trailer for The New Corporation, which is directed by Joel Bakan and Jennifer Abbott and critiques corporations like Big Tech. That trailer includes a short voice-over clip by U.S. politician and activist Alexandria Ocasio-Cortez and fellow U.S. Representative Tim Ryan speaking in a House floor speech, with Twitter deeming those appearances as too “political,” “sensitive” and “inappropriate” to be promoted on its social media platform.
“So in effect we were censored for material that is all about promoting democracy, critiquing corporate power and making statements and arguments that do come out of AOC’s mouth,” Joel Bakan, co-director of the Canadian documentary and a professor of law at the University of British Columbia, told The Hollywood Reporter.
He added the Canadian constitutional challenge will argue the feds in Ottawa aren’t properly regulating Twitter and have allowed the U.S. tech giant to control, limit and censor free speech in Canada with arbitrary and mostly unexplained decisions. Bakan also argues Twitter’s global content censorship policy stems from U.S. free speech laws based on the First Amendment that only limit governmental actors—federal, state and local—from censorship, while private actors like social networking sites can and do limit, control and censor speech.
That’s why social media bias lawsuits that claim, for example, that politicians, and especially conservative voices, have been censored have failed in the U.S. courts. But Canada has a far less of a rigid distinction between government and private actors when it comes to free speech laws, Bakan added.
And Canadian free speech law, unlike its US counterpart, allows for free speech claims against non-government actors, and does not protect incendiary, hateful, discriminatory and other types of harmful speech. That has Bakan’s lawsuit aiming to get Twitter and its global political ad policy regulated north of the border according to the requirements of local contract law.
Here the case will hinge on the claim Twitter, because of its central role in Canadian democratic discourse, is legally barred from restricting political and social speech that causes no harm, in the same way that governments are, as local contract law has jurisdiction over Twitter’s user agreement.
“If we succeed in Canada on this argument, that will have considerable influence on how people imagine they might be able to sue Twitter in the United States,” he ventured. A spokesman for Twitter in Canada said the social media site had no comment on the Canadian lawsuit.
The U.S.-based tech giant bans worldwide the promotion of political content and ads involving political figures like candidates, political parties and government officials. The New Corporation, which bowed at the Toronto Film Festival, argues big corporations have scrambled since the 2008 Wall Street market collapse to rebrand as socially responsible, but in ways that continue to aggressively pursue profit for shareholders and threaten democratic freedoms.
Bakan argues promoting the doc’s trailer using Twitter ads is key to getting attention for The New Corporation stateside, where a U.S. distribution deal is still up for grabs, as the use of organic tweets offers far less reach on the social media site. The lawsuit in turn argues Twitter rejecting promoted posts for the trailer harms the prospects of the film’s visibility and commercial launch and could hamper the film’s overall market performance and brand recognition.
The lawsuit also argues decisions about Canadian-running content made out of California potentially undermine Canada’s cultural sovereignty. Ultimately, Bakan cites the inclusion of AOC and Tim Ryan in his film trailer for Twitter refusing to allow the promotion of The New Corporation and its trailer.
“What AOC and Tim Ryan are saying is totally germane to the broader context of what the trailer, and hence the broader film, are saying,” he argued.
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