On December 6, 2016, the Supreme Court of Canada heard arguments on the appeal of an order of the British Columbia Court of Appeal which ordered Google to de-list certain websites from being accessible from any of its country-specific search engine domains.
The defendants were alleged to have engaged in selling online counterfeit products of the plaintiff, contrary to the plaintiff’s intellectual property rights. The British Columbia Supreme Court originally ordered the defendants to cease all sales of counterfeit product on the internet. The defendants did not comply, and have hidden themselves somewhere unknown, such that the plaintiff could not practically use the courts to compel the individuals responsible from ceasing this activity. As an alternative, the plaintiff looked to Google to make the defendant’s websites not appear in search result listings, which would largely effect the same result in that customers searching for the plaintiff’s products will not discover the defendant’s counterfeit products.
Google was agreeable to comply with an order that it de-list the websites for any users searching from Canada using google.ca, as they have often complied with an order to de-list websites which engage in or facilitate illegal activity. However, Google argued that the court lacked jurisdiction to compel the de-listing procedure worldwide. Essentially, Google submits that the plaintiff should still seek enforcement of this order where the defendants are located or, alternatively, in any jurisdiction that the plaintiff wants the order enforced in. They submit that seeking an indefinite and multi-jurisdictional restriction against a non-party like Google is not appropriate.
The plaintiff, conversely, submits that Canadian provincial courts are routinely tasked with creating orders that have an extra-territorial effect, including Mareva injunctions and Norwich injunctions which order a non-resident non-party (often a bank) to either freeze assets or disclose information to the plaintiff. To the plaintiff, an order compelling Google to de-list these infringing websites internationally is no different, and requiring the consensus of every country on the planet will practically result in the internet being a lawless vacuum where no single judicial authority could ever make an effective order.
The case has drawn interest from more than a dozen interveners, including the Attorneys General of Ontario and Canada, as well as a number of civil rights and media organizations, who have weighed in on how such an order would affect free speech rights, international comity, and access to justice. While some submit that the order granted is consistent with standard rules and norms of private international law, others contend that such an order sets a dangerous precedent that will enable the global restriction of information impacting other countries, all without input from the courts of those affected countries.
In either case, the decision will be of significant interest to litigants who may be attempting to protect their rights from being infringed internationally, as well as those concerned that such a decision will have a dramatic impact on free speech rights.