You can Google it: Supreme Court of Canada grants leave to appeal global injunction

Alex Sarabura - 

The Supreme Court of Canada has granted leave to hear an important case respecting the ability of Canadian courts to enjoin the behaviour of organizations with respect to their operations outside of Canada.

On February 18, 2016, the Supreme Court of Canada granted Google Inc. leave to appeal the judgment of the British Columbia Court of Appeal in Equustek Solutions Inc. v. Google Inc., in which the BCCA upheld an interlocutory injunction prohibiting Google from including specific websites in its search results worldwide.

The plaintiff’s request for the injunction against Google arose from a lawsuit in which the plaintiff alleged that the defendant was passing off its goods as those of the plaintiff.

After the plaintiff commenced the proceeding, the defendant left BC while still selling the knock-off goods over the internet, relying on search results to reach customers.  The plaintiff alleged that it lacked an effective way of stopping the defendant’s conduct, and sought an interlocutory injunction prohibiting Google from displaying the defendants’ websites in its search results anywhere in the world.  The Supreme Court of British Columbia deemed the injunction necessary to ensure that the orders against the defendants were effective, and granted the injunction.

Google appealed, arguing that the injunction represented an impermissible exercise of extra-territorial jurisdiction; improperly ensnared an innocent third-party (Google); and exceeded the Court’s jurisdiction.  Google also argued that the injunction violated Google and the public’s right to freedom of expression.

The BCCA rejected every one of Google’s arguments:

  • The Court found that it had jurisdiction over Google, both because the underlying action was connected to BC and because Google conducted business in BC (in response to Google’s concern that this meant that Google conducted business everywhere, the Court responded that if so, it was because of Google’s business model and was therefore Google’s problem);
     
  • The Court found that it had the right to act globally, both based on historical precedent, and because doing so would not offend international comity;
     
  • The Court found that the fact that Google was a third-party didn’t allow it to avoid the Court’s reach, based on precedent related to Norwich orders (whereby third‑parties are ordered to provide assistance to the Court); and
     
  • The Court dismissed Google’s arguments related to free speech, asserting that speech designed to allow the infringement of intellectual property would rarely be protected.

In seeking leave to appeal, Google generally argued that the BCCA did not focus sufficiently on the public interest, particularly in respect of freedom of speech.  Beyond that, Google highlighted three issues raised by the BCCA decision.

  1. When should a court be able to block search results, given the importance of freedom of expression, and what limits should be imposed?
     
  2. Do Canadian courts have the authority to block extra-jurisdictional search results?
     
  3. When is a litigant entitled to an interlocutory injunction against an innocent third-party?  Should the current approach to granting injunctions against parties to litigation be properly applicable to non-parties to the litigation?

It is not clear why the SCC granted leave; however, it is interesting to note that the BCCA decision came out before the SCC’s decision in Chevron Corp. v. Yaiguaje, in which the SCC considered the scope of Canadian courts’ jurisdiction (albeit in the context of an action to enforce a judgment).  It is possible that the SCC will take the Google appeal as an opportunity to further clarify Chevron; it is also possible that the SCC simply sees a need to craft jurisdictional guidance for the internet age.  Whatever the result, both intellectual property owners and internet-based organizations will be watching closely.

No dice: Supreme Court declares Alberta privacy law unconstitutional in Palace Casino case

David Elder -

In a landmark ruling, the Supreme Court of Canada has declared Alberta’s Personal Information Protection Act (PIPA) to be invalid in its entirety, finding that it infringes the freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms by limiting the ability of labour unions to videotape and photograph individuals crossing a picket line.

The declaration of invalidity is suspended for a period of 12 months to give the legislature time to decide how best to make the law constitutional. In light of the “comprehensive and integrated structure” of the law, the Court decided to strike PIPA down in its entirety, rather than declare as invalid particular provisions.

The Court’s ruling was made in the case of Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, which iscommonly referenced as the “Palace Casino” case, as the case arose in the context of a labour dispute between the management and employees of an Edmonton casino of that name.

As we noted in a previous post, the case considered complaints made by individuals who were videotaped by the union as they crossed the picket line in front of the casino.  Like other Canadian private sector privacy laws, Alberta’s PIPA generally requires the consent of individuals for the collection, use and disclosure of their personal information, including videotaped images of identifiable individuals.  The union, which did not obtain such consent, videotaped and photographed the picket lines in order to publicize the images of individuals crossing the lines.  An Adjudicator for the Information and Privacy Commissioner of Alberta found that the union had contravened the Act, and ordered the union to stop such collection and destroy any personal information obtained in breach of the Act.

The judgement focuses in particular on the breadth of PIPA, which the Court found limits the non-consensual collection, use and disclosure of personal information without regard for the nature of the information, or the purpose or context for its collection, use or disclosure. It is this approach, which the court found “deems virtually all personal information to be protected regardless of context,” which resulted in a finding of a Charter violation, since PIPA excludes any mechanisms by which a union’s constitutional right to freedom of expression may be balanced with the privacy interests protected by the Act.

Moreover, the Court noted that picketing represents a particularly crucial form of expression, and that the restrictions imposed by the statute impaired the ability of the union to communicate with and persuade the public, one of its most effective bargaining strategies in the course of a lawful strike. As a result, the Court found that the infringement of the freedom of expression was not justified under s. 1 of the Charter.

The ruling will have significant implications for other private sector privacy laws in Canada, and particularly with the existing provincial privacy laws in British Columbia, Québec and Manitoba (although the latter is not yet in force). Implications for the federal law, the Personal Information Protection and Electronic Documents Act, which applies in the remaining provinces, are less clear, since the federal applies to the collection of personal information from the public only in the course of commercial activities, which would not appear to include the activities of a union during a labour dispute.

Crossing the line: Supreme Court of Canada to consider balance between privacy rights and freedom of expression in picket line videotaping case

David Elder -

In an important constitutional case, the Supreme Court of Canada has granted leave to hear an appeal from a decision that found that the application of privacy law to the videotaping of individuals crossing picket lines infringed the Canadian Charter of Rights and Freedoms.

 As we noted in a previous post, the judgment in question considered the activities of a union that had videotaped picketing activity during a strike at an Edmonton casino.  Like other Canadian private sector privacy laws, Alberta’s Personal Information Protection Act (PIPA), generally requires the consent of individuals for the collection, use and disclosure of their personal information, including videotaped images of identifiable individuals.  The union, which did not obtain such consent, videotaped and photographed the picket lines in order to publicize the images of individuals crossing the lines. 

Several of the individuals in question complained to the Information and Privacy Commissioner for Alberta.  An adjudicator for the Commissioner found that in failing to obtain the consent of the individuals being videotaped, the union had violated PIPA.

The Alberta Court of Appeal found that the application of PIPA to the union’s activity in the context of a labour dispute violated the right of the union to freedom of expression guaranteed by s. 2(b) of the Charter.  The Court accordingly declared that the application of PIPA to the activities of the union was unconstitutional.

While the facts under appeal relate only to the application of Alberta’s private sector privacy law, the decision on the appeal may also affect the application of substantially similar laws in British Columbia and Québec, as well as the federal law, the Personal Information Protection and Electronic Documents Act.

The outcome of the appeal to the Supreme Court may have important implications well beyond the legality of surveillance activity in connection with picket lines, as it explores the intersection between privacy law and other conflicting rights, potentially calling into question the adequacy of the typically narrow exceptions to the consent requirement in privacy statutes.   In considering the balance between consent requirements and free expression, the appeal may also have important implications for the application of Canada’s Anti-Spam Law (not yet in force), which includes restrictive consent requirements with respect to the sending of commercial electronic messages.

See Information and Privacy Commissioner et al. v. United Food and Commercial Workers, Local 401 et al. (Alta.) (Civil) (By Leave) (34890)

Who was that masked man? Court protects anonymity of Internet users

David Elder -

In the latest chapter in a $6 million defamation suit by a former mayor, an Ontario court has refused to order the disclosure of the identities of three individuals who used pseudonyms to post to an online forum.

The case of Morris v. Johnson should provide some comfort to those who post commentary anonymously, while serving as a cautionary tale to plaintiffs seeking to get behind the pseudonyms of their critics and detractors.

Phyllis Morris is the former mayor of the Town of Aurora, Ontario. During her unsuccessful re-election campaign in 2010, the individuals in question allegedly made defamatory postings to the Aurora Citizen, a website featuring a blog and user forum centred on issues of interest to citizens of Aurora. Ms. Morris sued the anonymous posters, their counsel and a number of alleged moderators, writers and hosts of the site. She also brought a motion to reveal the identities of the anonymous defendants.

The case focused on how to best balance the a plaintiff’s need to obtain the identities of the anonymous defendants (in order to proceed with a defamation suit) and the public interest in promoting the administration of justice, weighed against the competing rights of privacy of the defendants and the underlying values of freedom of expression and political speech.

In cases of alleged defamation by anonymous parties, the courts in Ontario have taken the approach that, where privacy interests are involved, disclosure is not automatic, even if the plaintiff establishes relevance and the absence of any recognized form of legal privilege; rather, plaintiffs will be required to establish the elements of defamation on a prima facie basis before courts will consider ordering the production of identity information for the anonymous parties. 

In her judgement in the present case, Justice Brown of the Ontario Superior Court of Justice affirmed that the appropriate test to be used in such cases is the one set out in Warman v. Fournier, an earlier case involving alleged defamation by anonymous Internet users. Adapting the principles set out in the seminal U.K. case on pre-action discovery, Norwich Pharmacal Co. v. Comrs. of Customs and Excise, Warman set out the following factors to be considered in deciding to order disclosure of the identities of anonymous Internet users:

  • Whether the anonymous user could have a reasonable expectation of anonymity in the circumstances
  • Whether the plaintiff has established a prima facie case against the anonymous party and is acting in good faith
  • Whether the plaintiff has taken reasonable steps to identify the anonymous party, but has been unsuccessful in doing so
  • Whether the public interest favouring disclosure outweighs the interests of freedom of expression and the right to privacy

In the Morris case, the court found that the plaintiff had not made out a sufficient case to justify the reasonable expectation of anonymity of the defendants; in fact, the plaintiff had not pleaded the specific words that comprised the alleged defamation, nor had she adduced any evidence whatsoever in support of her contentions that the statements in question harmed her reputation, caused her emotional distress of caused her to fear for her safety. The court also found that she had not taken reasonable steps to identity the anonymous defendants.

The case is a further demonstration that courts will be reluctant to unmask anonymous posters in defamation cases, based on assumed defamation, or a simple identification of allegedly defamatory statements. Plaintiffs must provide sufficient particulars to allow the court, in determining whether a prima facie case of defamation exists, to conduct a contextual analysis of each defamatory statement. The court also hinted that the bar for revealing the identities of anonymous commentators may be even higher in political matters, such as a “hard-fought” mayoral campaign.

Apparently, Ms. Morris has indicated that she intends to appeal Justice Brown’s ruling.

UPDATE:  It was reported on October 18, 2011 that Phyllis Morris has discontinued her action against all defendants, including the anonymous defendants, putting an end to the case.