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In a much-anticipated decision, the Supreme Court of
Canada has upheld an injunction issued by the British Columbia Supreme Court
requiring Google not to display any part of certain websites on any of its
search results, not just at Google.ca or in Canada, but also at Google.com and
anywhere in the world: Google v. Equustek Solutions 2017 SCC 34.
The case started when Equustek,
a manufacturer in British Columbia, sued Datalink
Technologies, a former distributor of Equustek’s products, for passing off
Equustek’s products as its own, stealing Equustek’s designs to make competing
products, and the like. Datalink initially
defended the action, but later abandoned its defence and moved from British
Columbia to an unknown location where it continued to market the products
online. Several injunctions directing
Datalink to cease were ignored, leading the courts of British Columbia to
conclude that the only way to stop Datalink was to prevent its websites from
being found on internet searches. See my posts on earlier stages of this case, on
July 9, 2015 and Feb. 18, 2016.
The
case drew a lot of attention. At the Supreme
Court there were thirty five intervenors, including some from the United States. The decision was covered in the international
media including the Guardian.
However, the story is
somewhat overhyped. It is not the first
time a court issued an injunction affecting what can be seen online in a
foreign country. Earlier this year the European
Court of Justice upheld an order of a French court to remove content from
websites elsewhere in the European Union:
Concurrence SARL v Samsung
Electronics France (see my blog
dated Feb. 27, 2017). That content violated a commercial agreement.
As well, Google did not
raise new, unsettled legal issues in its appeal. Its first argument was that non-parties
cannot be the subject of an interlocutory injunction. In fact, it is already settled law that
non-parties can be bound by injunctions.
An example would be a Mareva injunction
that is commonly directed against not only the defendant but also the defendant’s
bank, so that the defendant cannot have its bank move funds. Another example would be
an injunction requiring non-party internet service providers to block the ability
of customers to access certain websites, in order to prevent facilitating
infringements of trademarks. Just like in the Google case, these injunctions prevent a non-party from
facilitating the conduct of a defendant the court seeks to restrain.
Google’s second argument was
that an interlocutory injunction ought not have extra-territorial effect. (Google did not challenge the court’s jurisdiction
over Google). Again, it is well-settled
law that courts can issue injunctions with international effects. World-wide Mareva injunctions have been available
for many years.
Google also argued that
the injunction could restrict freedom of expression and might violate laws of
other countries. This is likely the aspect of the case that drew the most
attention from observers. But again, this appeal did not really engage
any momentous human rights issue. The
expression in question was the marketing of pirated products. Never
has the S.C.C. accepted that “freedom of expression requires the facilitation
of the unlawful sale of goods” (para 48).
Further, Google provided no evidence that the injunction has or will
violate foreign laws. Google’s concerns were, in the Court’s words,
merely “theoretical”. Google acknowledged “most countries will
likely recognize intellectual property rights and view the selling of pirated
products as a legal wrong” (para 44).
Even so, there is a real
issue as to whether the Google injunction would be enforced around the
world. Many countries do not enforce
foreign non-monetary judgments of any kind, even if they do not affect
fundamental freedoms such as freedom of expression. Oddly, the Court’s reasons say
nothing about whether the injunction could be enforced abroad. Courts have sometimes declined to issue
injunctions with international effect in circumstances where there were little
or no prospect of enforcement. Let’s hope this ruling can be taken to mean
that enforceability need not be a factor in deciding whether to issue it. If
someone pursues an injunction, even in the face of limited prospects for
enforcement, the injunction is probably important to him. What harm is there in granting it?
In part two of this post,
I will address the dissent’s very conservative stance regarding interlocutory injunctions.
