2022 September 28

AB v. Thaher and TikTok Technology Canada Inc.,  2022 QCCS 3541

The Quebec Superior Court rejected a pre-trial motion by TikTok Technology Canada Inc. (“TikTok) to have this defamation action dismissed on the basis an internet intermediary cannot be liable for defamatory content posted by a third party unless it refuses to remove the defamatory content following a demand from the plaintiff.  In this case, before filing suit, the plaintiffs sent a formal notice to TikTok on April 14, 2021, identifying the defamatory content, demanding TikTok close the offending account and remove the hastags that identify the plaintiffs.  The Arabic-language videos made multiple, serious defamatory accusations.  On April 17, 2021 the plaintiffs filed an application for a provisional interlocutory injunction, an interlocutory injunction and a permanent injunction.  On April 22, 2021, the Quebec Superior Court issued an interim interlocutory injunction ordering TikTok to suspend the impugned account as well as the hastags.  Holding that the lawsuit against TikTok was not clearly doomed to fail, the Court noted that there will be special circumstances where an intermediary such as TikTok must be able to intervene quickly and remove a post that is plainly unlawful and harmful, without confirmation from an independent third party.  The Court also asked the rhetorical question:  What is the point of TikTok’s automated tool for monitoring content that violates its guidelines if TikTok will not act on its own when objectionable information is discovered, without waiting for independent confirmation from an objective third party?  The Court held that the lawsuit should proceed to a full hearing which would illuminate the rules that should apply specifically to TikTok in this situation.