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.

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.