Q&A with Professor Joel Bakan: Horizontality and the Charter

Conducted in the summer of 2024 by Krystin Hoffart.

April 24, 2025

---

Professor Joel Bakan from Allard Law, UBC. Professor Bakan has produced two documentary films that critique the power exercised by modern business corporations.

In this Q&A, CCS Summer Student Krystin Hoffart speaks with Professor Joel Bakan — a legal scholar at the University of British Columbia whose books are the basis for the documentaries The Corporation and The New Corporation. Bakan is also co-counsel in the lawsuit Cool World v Twitter, which revolves around the Charter’s indirect influence on private litigants and, more specifically, the possibility of using the Charter to protect high-value speech on social media platforms like X (formerly known as Twitter).

Q. To start off, could you provide a brief overview of the circumstances that led to the case of Cool World v Twitter?

A. At the heart of this case is a documentary film that I co-directed and wrote. It’s called the New Corporation, which is a sequel to an earlier film I wrote called The Corporation. Both films are based on books that I wrote, but the plaintiff is not me. It’s Cool World, a small social marketing company engaged by the latter film’s producers to publicize the film. Cool World is a company oriented towards social justice issues, and run by one person, Katherine Dodds.

Cool World was publicizing The New Corporation and sought to use the Twitter platform to do so (back then, X was still called Twitter). There is a service on the platform called “Promoted Tweets” (now “Promoted Ads”), where you can pay to amplify the reach of your Tweet. The more you pay, the more your Tweet is shown to more of your followers — and if you pay enough, also to people who are not your followers.

For an independent film about social and political issues, Twitter/X is a very important platform. More so than other platforms, like Facebook or Instagram, Twitter/X is heavily oriented towards political, social, and public policy issues. Which makes it an important place to publicize The New Corporation, which is why Cool World sought to promote a Tweet on the platform with a link to The New Corporation trailer.

Twitter immediately refused the promoted Tweet and responded to Cool World with varying reasons why. First, they said it was political content. Cool World pushed back. Next, they claimed it was inappropriate content, and Cool World pushed back again. Then they claimed it was sensitive targeting. Cool World pushed back again.

Eventually, Cool World was able to talk to an employee at Twitter, who agreed with the previous rejections, which were likely the handiwork of AI bots. Cool World did all it could to challenge Twitter’s decision within its internal complaints process, but got nowhere. Twitter, and X after it, continued to insist the Tweet violated its policies, and that it would not allow the Tweet to be promoted on its platform. Cool World decided to sue, and retained Toronto-based constitutional lawyer and scholar Sujit Choudhry and myself to represent it. We filed an application on behalf of Cool World and Dodds in the Superior Court of Ontario. 

Q. What are the main legal challenges that are facing the Cool World legal team?

A. The basic argument we’re making is that Twitter/X — a private, for-profit corporation that is not a government entity — has Charter-related free speech obligations in regard to how it exercises the absolute discretion over content and users it has by virtue of Clause 4 of its contractual Terms of Service. That immediately sounds problematic, of course, because as we know, section 32 limits the scope of the Charter’s application to government, Parliament and provincial legislatures, and entities that fall within those categories.

There are some cases, like Eldridge and Douglas College, that say, “Well, if a private entity, like a hospital or college, operates as an agent of government, effectuating government and legislative policies, then it might be bound by the Charter when — and only when — it performs governmental acts.” Sujit and I concluded early in the evolution of the Cool World case that it would be an uphill battle, and likely unsuccessful, to try to bring Twitter/X into this jurisprudential stream. It clearly does not act to effectuate government policy when moderating content on its platform.

At the same time, however — and this is crucial to our case — Twitter/X does perform an important public role in Canadian democracy, acting as a kind of public square for political and social debate. It is no exaggeration to say that Twitter/X has become a part of our democratic infrastructure. Governments and public institutions across the country, including courts, use it as a primary vehicle for making major announcements and talking about policy issues. It has become crucial for communications among governments, citizens, journalists, advocacy groups, NGOs, scholars, and experts. Yet, still, it is not a government entity, and it is not an entity acting on behalf of a government. So, it’s not really a fit for the Eldridge line of cases.

There is, however, another line of Supreme Court of Canada cases, beginning with Dolphin Delivery, and developed through cases like Hill v Church of Scientology and Pepsi-Cola v RWDSU, which hold that while section 32 excludes private actors from Charter obligations, section 52 requires that common law rules comply with the Charter.

Which raises the question: if private actors are not subject to the Charter, but the common law is subject to the Charter, what happens when you have two private actors (like Cool World and Twitter/X) governed by the common law (in this case, contract law)? In answer to this question, the Court has said in a series of private law cases — mainly concerning tort law — that the Charter is indeed relevant in such a scenario because the common law rules that govern must be assessed for compliance with Charter values. For example, a common law rule creating a total ban on secondary picketing offends the Charter value of free speech, the Court held in Pepsi-Cola, meaning it could not be the basis of an injunction claimed by one private actor (a company) against another (a union). So, in a private law case between two private actors, the Charter applies, albeit indirectly, and through its values rather than its rights.

The Cool World case is built partly on this line of cases, and partly on a second line of cases where Charter values are relevant in private litigation. The latter includes cases in the law of trusts where discriminatory trusts are found to violate public policy because, among other things, they offend Charter values; and also Justice Brown’s concurring majority decision in Uber v Heller, where he holds that a contract provision violates public policy because it impedes access to courts, and thereby undermines the constitutional value of access to justice (rooted in section 96 of the Constitution Act, 1867).  

Taken together, these two lines of cases suggest that courts can, should, or must consider Charter values in private litigation. Following that, our argument in Cool World is that public policy includes the Charter value of freedom of expression, and that that must be considered when assessing Twitter/X’s exercise of contractual discretion to curb speech like The New Corporation trailer. So, we need to persuade the court that Charter values are relevant in a contract law case. This shouldn’t be a major hurdle in light of the aforementioned lines of cases. While it’s true that none of the Hill line or the trust cases deal with contract law, and that Uber, which does deal with contract law, deals with a non-Charter constitutional value, these differences do not justify distinctions. As a matter of principle, it should make no difference what area of private law, or of the Constitution, is at issue. That is why we think we’re on strong ground here.   

Q. So the Cool World legal team has argued that parts of Twitter/X’s user agreement violate public policy — particularly the Charter value of free expression. Public policy, however, can be drawn from a variety of sources. Is it a risk to play up the constitutional character of the case, given that this might imply the court is being asked to engage in a form of constitutional review rather than merely applying the public policy doctrine?

A. I actually think it’s a risk not to take account of constitutional and Charter values in giving content to public policy. Logically, if it’s not a violation of public policy to encroach upon the nation’s most fundamental values, what is? When looking for sources of public policy, constitutional values should be at the top of the list, which is, in effect, what courts have stated or implied in the aforementioned trust cases and in Uber v Heller.   

I would only add that while there is little controversy about whether constitutional values should be considered when applying the public policy doctrine, there is an important question about whether consideration of those values should be mandatory or optional. When you look at the trust cases I mentioned or Justice Brown’s decision in Uber v Heller, you get the sense that constitutional values are one among various sources judges might — not must — look at to give content to public policy. That is different than the Hill line of cases, where consideration of constitutional values appears to be required by section 52. Jurisprudentially, these are questions that need to be figured out moving forward. For now, in Cool World, our argument is that, whether mandatory or optional considerations, free speech values limit Twitter/X’s absolute discretion over content.

There’s another point that needs to be made here. The various lines of cases we’re looking at assume a range of competing values — Charter and otherwise — that courts will have to balance. This is a nuanced process. In Cool World, we are not asking for a Wild West of free speech on Twitter/X. We’re very, very careful in our pleadings to say that, within a Charter-values framework, Twitter/X would still have discretion to eliminate from its platform speech that is hateful, discriminatory, misogynist, and dangerously false. The Supreme Court of Canada has been clear in its section 2(b) jurisprudence that some kinds of speech are more valuable than others, that speech, such as hate speech, has little value at all, and that, through section 1, the degree section 2(b) protection should be granted is proportional to the value of the speech in issue. Our argument is that section 2(b) values should only bar Twitter/X from exercising its contractual discretion to restrict high-value, non-harmful speech, as the Court has defined such speech in its jurisprudence. Twitter/X should remain free to bar other kinds of speech, and particularly that which is of low value, especially when that is due to its being harmful and dangerous. 

Therefore, in Cool World, following cases like Hill and Pepsi-Cola, and the public policy cases too, the question judges must ask is whether, on balance, the Charter free speech values at stake outweigh other values at stake in the case, such as those pertaining to Twitter/X’s freedom of contract and freedom of speech. Our argument is that the Charter values associated with Cool World’s free speech interests are weightier than Twitter/X’s free contract and free speech interests, and that that is because of the kind of speech in issue — informed, educational, non-harmful social and political speech — and, on the other side, the limited degree to which Twitter/X’s Charter-value-related interests are affected. The film trailer, and the film itself and the book, reflect careful, rigorous, evidence-led analyses. People may disagree with their messages, but those messages are based upon evidence and arguments that popularize ideas from my scholarly analysis. There is little doubt that, following the Court’s jurisprudence, any court would find The New Corporation trailer to be the kind of speech that lies at the core of section 2(b) protection, and that thereby warrants the highest level of constitutional protection. A government restriction on such speech would surely be struck down by any court. But our case is limited to protecting high-value and non-harmful speech, leaving no risk of its being taken to support an American-style, absolutist free speech position.

Indeed, the argument at the heart of Cool World — that Charter values fetter platforms’ discretion over content — could actually open up possibilities for Charter challenges against such free speech absolutism on platforms. One can imagine, for example, an anti-racist advocacy group suing Twitter/X for including hate speech by arguing that, in doing so, Twitter/X offends the section 15(1) Charter value of equality. In other words, by opening up platform’s exercise of discretion over content to Charter value scrutiny, Cool World creates jurisprudential avenues not only for protecting high-value speech, but also for protecting people from harmful, low-value speech.

Q. Some people (and corporations) may object to Cool World’s position on the grounds that it could extend the scope of the Charter, which is only supposed to limit government action. Would this really be a problem, though? What’s wrong with having the Charter — a source of supreme law in Canada that protects individual rights and freedoms — bind private entities like Twitter/X in addition to governments? Is there a limit to how far the Charter and its values should stretch?

A. That’s a big question and there are a few things I would say in answering it. First, what we’re asking for in Cool World is pretty modest in terms of how far we want the Charter to stretch into private relations. There are more ambitious arguments to be made, which usually fall under the rubrics of positive, or social and economic, rights. Such arguments claim that for the Charter to have real impact and truly fulfill its purposes — which include, to borrow from Chief Justice Dickson in Oakes, promoting social justice and equality, ensuring Canada is pluralistic, and that citizens are able to participate fully in democratic institutions — the rights it enshrines have to have some measure of force in private relations, especially when private actors, like Twitter/X and other large corporations, have near quasi-governmental power. To completely hive off the Charter’s relevance in a vastly unequal private domain where large private actors are dominating influences in people’s lives is a problem, the argument — which I agree with — goes. 

That line of argument suggests there’s a role for courts to deploy Charter rights in ways that, for example, impose obligations on governments. This was the thinking in a companion case to Cool World — which we abandoned after Twitter/X succeeded in its motion to strike — where we argued that the federal government has a positive obligation to protect Twitter/X users from unreasonable restrictions on high-value speech that causes no harm. The more general basis of the argument was that the government has Charter obligations to protect people from actions by powerful private actors that undermine their Charter-related interests.

You’ll see this argument being made today in climate cases, in Canada and worldwide. Groups are going to court claiming that governments jeopardize constitutional rights to equality and security of the person by failing adequately to restrict greenhouse gas emissions. The remedy being asked for is that governments constrain fossil fuel producers and polluters, mainly private actors, to mitigate climate change. That’s one avenue through which people are asking for the Charter to have an impact on private relations. The other avenue is the one we’re suggesting: that Charter values be treated as relevant in private law cases. The former avenue likely has more potential impact than the latter (which does not deny the latter’s importance), especially if groups start succeeding before courts in claims that governments run afoul of Charter rights when they provide inadequate protection of people’s needs for housing, healthcare, social security, and so on, in addition to climate mitigation.

Q. You’re doing a great job of giving answers that lead perfectly into my next question! So, Cool World is one of two suits related to Twitter/X’s conduct vis-a-vis The New Corporation: one against Twitter/X, and one against the Government of Canada. The latter case, which was dismissed, centered around the notion that the government has an obligation to regulate Twitter/X to better protect free expression rights. What was the basis for that second case (Bakan v Canada)? And if both cases had been pursued further, which would have the greater potential for extending the Charter’s reach to private conduct?

A. That’s a good question. The essential framework of Bakan was that the government of Canada has an obligation to regulate Twitter/X and similar platforms to protect high-value speech that isn’t harmful. That was our argument, and we relied on cases in which the Court has said that, in some instances, section 2(b) can create positive state obligations, like Baier and City of Toronto. In those cases, the Court held that if the government creates a platform for speech — such as a school board or municipal election — then it must ensure everyone who should be included on that platform is included, and that people aren’t arbitrarily excluded.

We argued that there’s language in City of Toronto suggesting the positive section 2(b) obligation might go beyond platforms created by government. And that Twitter/X was an obvious place for that extension given its substantial role in public discourse, and particularly the fact governments, specifically the federal government, use Twitter/X as much as they do, and in the significant ways they do. We reasoned that this created some obligation to ensure Twitter/X’s power over content wasn’t absolute — that a forum used by government as a key channel for communicating with citizens was obligated to not arbitrarily exclude citizens and content.  

The argument was especially difficult in light of City of Toronto’s very restrictive approach to positive section 2(b) obligations, even on platforms created by governments. To try to take that already restrictive approach to a platform not created by government was, according to the Court, a bridge too far. Which was too bad, because if the case had ultimately succeeded, it might have had even more profound implications than the Cool World case (which is exactly why Cool World is more likely to succeed: it’s more in line with extant jurisprudence, less of a stretch). The Bakan case, by contrast, was really pushing the envelope, and was maybe even outside the envelope, so it was much harder.

Q. The New Corporation explores some of the challenges that grassroots community activists have faced when challenging and opposing the conduct of corporations. What kind of unique challenges come with launching legal action against a corporation like Twitter/X, which has significantly more resources than Cool World? And is it problematic that in dismissing Bakan, the Court said that the government does not have a positive obligation for free expression protection, which then forces individual litigants to be aware of Charter values and potentially take on corporations with more resources to protect them?

A. Res ipsa loquitur: the thing speaks for itself. If Cool World did not have access to myself and my Co-Counsel Sujit Choudhry to do this case for free, they would not have been able to bring the case. So, one clear challenge: finding the resources to fight a Charter case is not easy. Typically, you either need lawyers working for you for free, or you’ll have to have well-funded groups behind you.

We have an ongoing fundraising campaign — not to pay us lawyers, but to pay for the myriad of costs associated with litigation, including expert witnesses, researchers, document production and perusal, filing fees, and on and on. At the moment, we’re out of money, and it’s a question whether we can even continue with this case — and that’s with two free lawyers. So that’s a real challenge.

The second challenge is that complainants in these kinds of cases risk a cost award against them if they lose, which, for some, can be life-ruining. There’s a famous case about genetically modified organisms in the prairies: Schmeiser v Monsanto Canada Inc. A farmer, Percy Schmeiser, went after Monsanto and had these huge costs awarded against him that nearly ruined him. A company like Cool World has very little in the way of resources to begin with, and if it loses this case, Twitter/X can seek costs from it. That prospect can be a real disincentive for someone thinking of pursuing a case against a company like Twitter/X. Cool World’s sole owner and operator, Katherine Dodds, has been very brave in continuing with this case.

So, the combination of not having resources to mount a case, and then running the risk of an adverse cost award if you do mount one, creates profound deterrents to Charter and other social justice cases being brought against powerful private actors (notably, typically in Charter litigation government defendants do not seek costs awards against complainants). That’s a huge access to justice problem.

So, what’s the solution? Not to paint a too rose-tinted glasses picture of it, the hope is that if these cases are brought and succeed, then they set precedents that help ensure rights are protected. If, for example, we manage to create a legal precedent that says social media platforms must comply with free speech values in certain contexts, then the hope is companies will comply with that ruling, because it’s the law. There will be times, of course, when they say they’re complying and others disagree, or where they simply don’t comply, both scenarios making more litigation necessary. So, it’s not a perfect solution. But if we are successful with Cool World, we will have created a legal framework that companies will have to try in good faith to comply with, and the hope is that that will make a difference.  

If the Bakan case had prevailed, would that have been a better situation? Perhaps, because then it’s not up to individuals to litigate to get the law enforced, but it’s up to governments to enforce their regulations and legislation. Having said that, there’s an argument that it is better to have courts rather than governments overseeing content on social media platforms, due to the risk of undue government muzzling of speech, and the greater expertise and experience of courts in this area. It was for this reason that, in Bakan, we were careful to ask for regulation and legislation that effectively operationalized the Court’s approach to freedom of expression — ones that required platforms to not restrict speech that is, following the Court’s section 2(b) jurisprudence, high-value and non-harmful — like that in our film trailer.