Award-winning documentary maker accuses Twitter of muzzling speech critical of corporations

When Joel Bakan was told Twitter wouldn't permit paid promotions of his latest documentary on the social media platform, he felt like he was living a scene from one of his films.

The University of B.C. law professor wrote and co-directed the hit 2003 documentary The Corporation as well as its 2020 sequel The New Corporation — both of which examine threats posed by unbridled corporate power.

The marketing firm hired to generate buzz around the latest movie wanted to "boost" a tweet containing a trailer. But without pinpointing exactly what was objectionable about the content, Bakan says Twitter deemed the tweet "political" and in violation of the company's promotional policies.

"We have an entire segment in the film about the threat that big tech poses to democracy and to people's rights. And then we end up being at the other end of a threat posed to our rights in exactly the same way that we're describing," Bakan says.

"When Twitter first said no to us, I was gobsmacked. I tend to be skeptical of big corporations. Obviously that's my work. But I was shocked. I was appalled as well."

'Each time, Twitter offered a different justification'

Bakan — who as well as being a writer, director and producer, is also an expert on constitutional law — is now suing both Twitter and the Canadian government in a bid to force regulators to treat social media platforms as public arenas when it comes to freedom of expression.

He's representing himself, The New Corporation's production company and a marketing firm in a pair of claims filed this week in Ontario's Superior Court seeking orders that would result in federal legislation to prohibit companies like Twitter from banning political, social, governmental and democratic expression that is not harmful.

Released in 2003, The Corporation is still the highest grossing documentary in Canadian history and was nominated for a slew of international awards.

The New Corporation: The Unfortunately Necessary Sequel is described on the film's website as revealing "how the corporate takeover of society is being justified by the sly rebranding of corporations as socially conscious entities."

The film premiered at the Toronto International Film Festival in September 2020 and was released on Crave in February 2021.

According to the court filings, in November 2020, a representative of the marketing firm tried to buy promotion of Tweets and ads that linked to a documentary trailer that was just under two minutes long.

They were rejected a total ot six times in the weeks to come: "Each time, Twitter offered a different justification," the lawsuit claims.

'Some political undertones to the content'

The trailer contains interviews with activists, scholars and public figures like Union of B.C. Indian Chiefs President Grand Chief Stewart Phillip. It also contains clips with the voices of billionaire Microsoft founder Bill Gates and U.S. Democratic politician Alexandria Ocasio-Cortez.

The lawsuit quotes correspondence between the marketing firm and Twitter, starting with "what appeared to be an automated reply explaining that: 'Tweets can be disapproved if they are found to violate the Twitter Ads Policies.' "

Twitter later explained that the trailer violated the company's political content policy, which governs ads "referencing a candidate for election, a political party, or an election; appeals for votes; appeals for financial support; legislative advocacy."

A marketing company employee replied that the trailer was "not inherently political in the sense that it is not advocating for any candidate or any election, or appealing for financial support, votes or any specific legislative advocacy."

A Twitter representative ultimately wrote back to say there appeared to be "some political undertones to the content" and regardless of whether "a film is acclaimed or whether or not it's a documentary, the same policies must be adhered to."

Twitter encouraged the filmmakers to push their product through the platform "organically" — but the court documents claim tweets that don't go through the paid promotional route only reach three to five per cent of an account's followers and no one beyond the account.

In the final email cited in the court documents, Twitter said the company didn't have the resources "to deem all of the content on our platform as 'credible' as many areas are quite nuanced and subjective."

But the social media giant stressed that promotion of political content is prohibited "globally."

"For somebody like me, who has spent my whole life studying freedom of expression, the idea of a global, blanket ban where they don't look into credibility, where they're providing basically no reasons and just saying we're going to muzzle you and that's that — is anathema," Bakan says.

"We're talking about a platform that serves as a key part of Canada's democratic infrastructure."

'We're finding that middle ground'

Twitter has not responded to the lawsuit and declined a request for comment from the CBC.

The case raises questions about the role of social media in public discourse and access to paid promotional streams that Bakan argues give some users greater reach in exchange for money.

He points to the fact that Canada's prime minister and top court both have Twitter accounts they use to do the nation's business.

In 2017 the Supreme Court of Canada said "access to … social media platforms, including the online communities they make possible, has become increasingly important for the exercise of free speech, freedom of association and for full participation in democracy."

And yet Bakan argues that promoted tweets allow corporations to purchase a megaphone to raise their voices and their messages above the crowd. He's asking for the right to do the same.

"In the most traditional idea of freedom of speech as a marketplace of ideas, they're allowed into the marketplace with their messages, we're not allowed into the marketplace to criticize them," he says.

The lawsuit wants an order stating that government regulation of social media companies should be guided by the Charter of Rights and Freedoms, which protects "high value expression."

Bakan says he's not seeking to stop Twitter from banning hate speech or users whose statements would be considered harmful.

"We're trying to find a way to make constitutional free speech values relevant to Twitter's operations without completely binding Twitter, a private entity, to the dictates of the Constitution," he says.

"We're finding that middle ground."