In X Corp. v. Masjoody, 2025 BCCA 89, released on March 25, Justice Lauri Ann Fenlon found that the forum selection clause in X’s terms of service does not apply to claims arising from harm caused by third parties viewing defamatory statements about the plaintiff on the platform.
X’s terms of service (TOS) require that all disputes related to its services be governed by the laws of the state of California.
“Dr. Masjoody’s claim is not a complaint about what content he has been exposed to on X. It is, rather, a complaint about what the general public can read about him on X, and the impact of that content on his reputation and security,” Justice Fenlon wrote.
In January 2024, the self-represented respondent, Masood Masjoody, commenced claims against the appellant, X Corp., and certain individual defendants for posts made on its social media platform.
The respondent has alleged that the appellant is vicariously liable for publication of the defamatory statements made about him by others on X or has published these statements, and is involved in a conspiracy to defame him.
He is seeking damages in excess of $50 million and an injunction against X Corp. compelling it to take down the offending posts.
In April 2024, X filed an application for stays of proceeding based on the forum selection clause contained in its TOS.
In Masjoody v. Momeni, 2024 BCSC 1004, a chambers judge dismissed X’s applications, finding that the forum selection clause did not apply to the causes of action in defamation brought by the respondent.
The chambers judge observed that the respondent’s claims were based on harm caused by third parties viewing defamatory statements about him that were available on X, while the forum selection clause covered disputes over his access to and use of X Corp.’s services.
X appealed the decision, arguing that a complaint related to the publication of defamatory content is related to X’s services within the meaning of the forum selection clause.
It argued that while the forum selection clause does not expressly refer to “content,” services must encompass content as they are meaningless without it.
Justice Fenlon rejected this argument, noting that X’s TOS define both “services” and “content” as distinct concepts and draw a distinction between services and content throughout the agreement.
“It does not follow, then, that a dispute over the services includes a dispute over content,” the judge wrote.
X also argued that even if content is not caught by services, the dispute the respondent was pursuing was related to the TOS, noting that the forum selection clause encompasses disputes related to the TOS.
One of the terms in the TOS provides that users may be exposed to content that might be offensive, harmful, inaccurate or otherwise inappropriate, and that all content is the responsibility of the person who originated the content.
Justice Fenlon highlighted that the opening words of the TOS stated that the agreement governs users’ access to and use of X’s service and their access to and use of any content on X.
She observed that the TOS is related to X’s entitlement to make use of, modify, display or remove content on its own initiative, without complaint from the user.
“In the present case, Dr. Masjoody is not asserting a right under the terms of service to compel X to remove the defamatory content. Rather, he seeks as a remedy a court-imposed removal order directing X to take down certain content,” she wrote.
She held that the respondent’s claim arose from what the general public could read about him on X and its impact on his reputation and security, and not from his use of X’s services.
X also submitted that the terms disclaimed liability for damages resulting from any conduct or content of any third party using the services.
It argued that the respondent’s claim was a dispute related to this limitation of liability term and was therefore caught by the forum selection clause.
Justice Fenlon noted that the respondent’s claims against X went beyond a claim for damages for the republication of defamatory content posted by third parties.
She highlighted that the respondent had claimed that X was liable for failing to stop the campaigns of defamation, targeted harassment, hatred and incitement to violence against him.
The respondent had also claimed that the appellant’s actions involved defamation, incitement to defamation, inciting hatred, willfully promoting hatred, uttering threats to cause death or bodily harm, and causing the plaintiff to receive such threats.
“It appears that Dr. Masjoody claims X Corp. has defamed him directly, and incited others to do so. That claim cannot be described as a dispute over the conduct of, and content posted by, third parties on the services,” the judge wrote.
She further noted that the respondent’s request for an injunction to compel X to take down the defamatory posts was not a dispute relating to recovery of damages and therefore not covered by the limitation of liability term in the TOS.
X also argued that even if the forum selection clause and the terms are limited to Masjoody’s access to and use of the services, the defamation claim relates to that use on the basis that many of the allegedly defamatory posts were made in response to the respondent’s use of X to share his opinions.
Justice Fenlon rejected this argument, noting that it was not evident at the current stage of the proceedings that all or even most of the allegedly defamatory posts were directly responsive to what Masjoody had said on X.
She found that the posts in issue were more accurately described as related to the use by others of their accounts on X.
The judge held that X Corp. had not met its burden of establishing that the proceedings against it were clearly within the scope of the forum selection clause, and dismissed the appeal.
Counsel for X Corp. were Matthew Diskin and Lindsay Burgess of Osler, Hoskin & Harcourt. They were not immediately available for comment.
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