Friday, 30 June 2017

SCC Upholds Injunction Against Google - Comment Part I

            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 or in Canada, but also at 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. 


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