If Not Here, Where? Transnational Litigation Against U.S. Tech Companies Around the World
May 2, 2023
As U.S. courts have narrowed their amenability to transnational litigation, foreign courts have emerged as forums for such litigation. This is strikingly clear in suits against U.S. tech companies, which often cannot be sued at home because of Section 230 immunity. In suits around the world against U.S. tech giants, foreign courts are adapting concepts like specific personal jurisdiction in flexible ways to accommodate modern challenges. Examples include litigation in Canada against Twitter, in Kenya against Facebook, and in Europe against Google. In these cases, the basis for jurisdiction and application of forum law is more localized, but there are still questions about whether these courts have adjudicative jurisdiction.
In these suits in foreign courts, U.S. defendants are invoking the same argument that similarly situated foreign defendants have successfully deployed in U.S. courts over the last few decades—that the cases are too foreign and do not belong in these courts. But the U.S. defendants do not have a home court advantage in these suits. They find themselves in courts with closer ties to the disputes at issue and with stronger claims to both judicial jurisdiction and the authority to apply local substantive law. These U.S. companies then find themselves subject to liability they have avoided in the United States—and potentially to remedies with worldwide effect.
In an essay in Professor Linda Silberman’s honor forthcoming in the NYU Journal of International Law and Policy, I first chart the development of litigation isolationism, by which I mean the rising barriers to transnational litigation in U.S. courts. I then discuss examples of transnational litigation against U.S. tech companies around the world. Finally, I discuss these trends in the context of Linda’s broader scholarship and contributions about the importance of comparative law and multiple perspectives in understanding and transforming the transnational dispute resolution system.
Litigation Isolationism
For years, U.S. courts were seen as a popular forum for plaintiff-driven transnational lawsuits. It was easy to establish personal jurisdiction over corporate defendants, thanks to “doing business” jurisdiction. Major federal regulatory statutes, including securities and antitrust statutes, were interpreted to apply to actors and conduct around the world.
Linda Silberman long criticized U.S. courts’ openness to transnational litigation based simply on “doing business” jurisdiction. And she suggested ways to modernize and simplify the global reach of American law—for example in her work with Stephen Choi on extraterritoriality.
In the last few decades, U.S. courts have raised barriers to transnational litigation, including by narrowing personal jurisdiction and broadening forum non conveniens. For example, Daimler v. Bauman (2014) eliminated “doing business” jurisdiction, thereby excluding much of this highly criticized transnational litigation from U.S. courts. One could still sue U.S. defendants in U.S. courts, of course, but forum non conveniens remained available even in suits against U.S. defendants sued “at home.”
With the narrowing of general jurisdiction, plaintiffs may have rely on specific jurisdiction to sue in fora with closer ties to the dispute. The U.S. approach to specific jurisdiction, however, is often narrower than other countries’ and seemingly less flexible. For example, most countries, unlike the United States, would allow a worker to sue a foreign shearing machine manufacturer in the worker’s home jurisdiction if he went to work one day, close to his home, and got his hand sawed off. This is true even if the manufacturer used a distributor to sell the machine to the worker’s employer.
Likewise, historically, a source of U.S. courts’ magnetism for transnational litigation had been their broad extraterritorial application of U.S. law. For example, plaintiffs sued in California over a Scottish plane crash, hoping California law would apply; others tried to sue in New York over securities fraud relating to shares traded on an Australian exchange, hoping U.S. securities law would apply; and still others tried to sue in federal court over torture and killings in Nigeria, hoping international law would apply. In recent cases, the Supreme Court has held that U.S. law does not apply in any of those circumstances.
Also relevant to the cases discussed here is the rise of substantive law immunity for certain kinds of suits, including immunity for internet platforms through Section 230. For offenses on the internet, here or abroad, Section 230 immunizes social media platforms and other internet companies from suit both for failing to remove unlawful content and for removing lawful content. While other nations recognize certain forms of immunity from suit, Section 230 immunity is particularly strong and broad.
At least some of this reallocation is as it should be, and as Linda had encouraged. But it also means that other nations, and other courts, may step in to fill the void both in regulating conduct and offering a forum in which to litigate about it.
Transnational Litigation Against U.S. Tech Giants
This brings me to my second point—highlighting trends in litigation against U.S. defendants around the world. My point is not necessarily that any of these cases could have or should have been brought in the United States. Rather, some are the kinds of cases that multinational companies tried (successfully) to exclude from U.S. courts. Now, U.S. tech companies are trying to deploy the same playbook of transnational litigation avoidance doctrines in foreign fora but are meeting with less success. They didn’t want to be sued at home under general jurisdiction, so now they’re being sued somewhere else under specific jurisdiction—and finding themselves subject to local law, and remedies that may reach worldwide.
Twitter in Canada
In my first example, Frank Giustra, a Canadian billionaire businessman and philanthropist, sued Twitter in a British Columbia court for publishing defamatory posts about the 2016 U.S. election and Giustra’s connections to the Clintons. Twitter moved to dismiss for lack of personal jurisdiction or on forum non conveniens grounds, arguing that California was a more appropriate forum.
This was a bold choice. Yes, Giustra owned a home in California, and the statements he was suing Twitter for publishing were overwhelmingly posted by Americans and were about U.S.-related topics. But any U.S. suit against Twitter on these grounds was “doomed to fail” because of Section 230. The B.C. court clearly had judicial jurisdiction because the tweets were published in British Columbia and harmed a B.C. resident. Under B.C. conflict rules, B.C. law would apply.
The lower court reasoned that California could not be an alternative forum when the plaintiff would have no cause of action there. It declined to dismiss on forum non conveniens, and the Court of Appeals affirmed. Giustra and Twitter reached an undisclosed settlement in January 2023.
Meta in Kenya
My second example is about two suits against Facebook in Kenya—one brought by a content moderator about working conditions, and the second brought because of the harmful effects of posted content.
First, in 2022, a content moderator working for Facebook in Nairobi sued Facebook for traumatizing him by making him watch “gruesome content such as rape, torture, and beheadings” as part of his work. He sued Meta Platforms, Inc. and Meta Platforms Ireland (together, “Meta”), and Samasource Ltd, the local hub operator, in Kenyan High Court, alleging violation of his rights under the Kenyan Constitution.
Meta argued that the Kenyan courts lacked jurisdiction over foreign corporations that are neither domiciled nor doing business in Kenya, that the Kenyan constitution does not apply extraterritorially, and that it could not apply to foreign defendants like itself. The court rejected these arguments, reasoning, among other things, that the Meta parties were “necessary and proper parties to the suit.”
While a victory for Motaung, the legal issues are thorny, and Meta is appealing. Questions open for reconsideration include whether Meta itself operates in Kenya, or only through Samasource, and whether the Kenyan constitution operates extraterritorially.
A second even more recent case involves the content moderation itself. Although it was just filed and so legal conclusions are hard to draw, it may represent a growing trend.
In October 2021, an Ethiopian chemist, Professor Meareg Amare, was murdered after several Facebook posts appeared that made false accusations against him, identified where he lived and worked, and called for his death. His son sued Meta in Kenyan High Court for violations of the Kenyan Constitution. They alleged that through its algorithms that promote hateful and inciting posts, Meta prioritizes profit over Africans’ lives and thereby discriminates against Facebook users in Africa on account of “race, and ethnic and social origin.” Although the plaintiffs and the decedent are Ethiopian, they sued in Kenya based on the location of the nearest Facebook content moderation hub.
Facebook and Google in Europe
In Europe, the ECJ has held that Austria can order Facebook to take down a defamatory post against an Austrian politician not just in Austria, but around the world. And in the right-to-be-forgotten litigation, the ECJ held that courts in the EU have judicial jurisdiction over non-EU companies (e.g., Google) if the company operates out of an EU base and uses its search engine for profit. Together, these decisions pave the way for the possibility of considerable regulation of the worldwide internet via a combination of the Brussels effect, specific jurisdiction, and authorization of worldwide injunctions.
Transnational Litigation and Comparative Law
These examples reveal modern trends in at least some foreign courts that are recognizing a broader scope of specific jurisdiction than the U.S. conception and an openness to providing worldwide judicial relief. While the U.S. Supreme Court is narrowing specific jurisdiction in cases about cars and trains, foreign courts are modernizing their conceptions of specific jurisdiction in complex cases involving the internet. The argument against transnational litigation in U.S. courts based on doing business jurisdiction was once that subjecting all companies that do business in the United States to such suits put them at a comparative disadvantage. Today’s landscape, however, may place U.S. plaintiffs at a comparative disadvantage, at least against certain defendants. First, Section 230 offers broad immunity from content-related suits for content providers, whether foreign or domestic. Thus, foreign plaintiffs may be able to sue for defamation or other harms from posted content in their home courts, when U.S. plaintiffs may not. The Supreme Court is currently reviewing the scope of this immunity.
These observations echo broader themes in Linda Silberman’s work: What happens in U.S. courts—and to U.S. parties—is interrelated to what happens in foreign courts; what happens at the beginning of a lawsuit (including issues of jurisdiction) is interrelated to what happens at the end (including issues of remedies and enforcement); and comparative law is essential to understanding and improving both our own law and the transnational dispute resolution system. That understanding requires a deep knowledge of foreign law, procedures, and practices. On a personal level, it requires acquaintance with foreign lawyers. The diverse international group that gathered in Linda’s honor on April 20-21 at NYU Law School demonstrates that Linda has mastered not only U.S. and comparative law, but also created friendships with colleagues around the world.
Linda’s retirement perhaps marks the end of an era, but she has and continues to sharpen our vision of the balances to be struck in the domestic and international systems of litigation.