rfl_icbac7

E-commerce has exponentially increased the difficulty of determining whether a company is carrying on business in a particular jurisdiction; it raises the spectre of a company being found to carry on business all over the world, just as Google submits with some alarm. Kevin Meehan comments in “The Continuing Conundrum of International Internet Jurisdiction” (2008) 31 BC Int’l & Comp L Rev 345 at 349:

In the traditional analog world, it is relatively easy for courts to determine the geographical locations of the persons, objects, and activities relevant to a particular case. The geography of the digital world of the Internet, however, is not as easily charted. Content providers may physically reside, conduct their business, and locate their servers in a particular location, yet their content is readily accessible from anywhere in the world. Furthermore, attempts to identify the location of a particular user over the Internet have proven extremely difficult, and many Internet users compound this problem by intentionally hiding their location. Traditional principles of international jurisdiction, particularly territoriality, are poorly suited for this sort of environment of geographic anonymity. Courts have struggled to develop a satisfactory solution, yet no progress has been made toward a uniform global standard of Internet jurisdiction.

In short, courts have traditionally focused on locating the behaviour in issue within a particular state’s borders to ensure that “the connection between a state and a dispute cannot be weak or hypothetical [so as to] cast doubt upon the legitimacy of the exercise of state power over the persons affected by the dispute” [Van Breda at para. 32]. Online activities, whether commercial or otherwise, are not so easily pigeonholed.
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The Court must adapt to the reality of e-commerce with its potential for abuse by those who would take the property of others and sell it through the borderless electronic web of the internet. I conclude that an interim injunction should be granted compelling Google to block the defendants’ websites from Google’s search results worldwide. That order is necessary to preserve the Court’s process and to ensure that the defendants cannot continue to flout the Court’s orders.

E-commerce has exponentially increased the difficulty of determining whether a company is carrying on business in a particular jurisdiction; it raises the spectre of a company being found to carry on business all over the world, just as Google submits with some alarm. Kevin Meehan comments in “The Continuing Conundrum of International Internet Jurisdiction” (2008) 31 BC Int’l & Comp L Rev 345 at 349:

In the traditional analog world, it is relatively easy for courts to determine the geographical locations of the persons, objects, and activities relevant to a particular case. The geography of the digital world of the Internet, however, is not as easily charted. Content providers may physically reside, conduct their business, and locate their servers in a particular location, yet their content is readily accessible from anywhere in the world. Furthermore, attempts to identify the location of a particular user over the Internet have proven extremely difficult, and many Internet users compound this problem by intentionally hiding their location. Traditional principles of international jurisdiction, particularly territoriality, are poorly suited for this sort of environment of geographic anonymity. Courts have struggled to develop a satisfactory solution, yet no progress has been made toward a uniform global standard of Internet jurisdiction.

In short, courts have traditionally focused on locating the behaviour in issue within a particular state’s borders to ensure that “the connection between a state and a dispute cannot be weak or hypothetical [so as to] cast doubt upon the legitimacy of the exercise of state power over the persons affected by the dispute” [Van Breda at para. 32]. Online activities, whether commercial or otherwise, are not so easily pigeonholed.
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The Court must adapt to the reality of e-commerce with its potential for abuse by those who would take the property of others and sell it through the borderless electronic web of the internet. I conclude that an interim injunction should be granted compelling Google to block the defendants’ websites from Google’s search results worldwide. That order is necessary to preserve the Court’s process and to ensure that the defendants cannot continue to flout the Court’s orders.

The problem in this case is occurring online and globally. The Internet has no borders — its natural habitat is global. The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates — globally. As Fenlon J. found, the majority of Datalink’s sales take place outside Canada. If the injunction were restricted to Canada alone or to google.ca, as Google suggests it should have been, the remedy would be deprived of its intended ability to prevent irreparable harm. Purchasers outside Canada could easily continue purchasing from Datalink’s websites, and Canadian purchasers could easily find Datalink’s websites even if those websites were de-indexed on google.ca. Google would still be facilitating Datalink’s breach of the court’s order which had prohibited it from carrying on business on the Internet. There is no equity in ordering an interlocutory injunction which has no realistic prospect of preventing irreparable harm.

The interlocutory injunction in this case is necessary to prevent the irreparable harm that flows from Datalink carrying on business on the Internet, a business which would be commercially impossible without Google’s facilitation. The order targets Datalink’s websites — the list of which has been updated as Datalink has sought to thwart the injunction — and prevents them from being displayed where they do the most harm: on Google’s global search results.

Nor does the injunction’s worldwide effect tip the balance of convenience in Google’s favour. The order does not require that Google take any steps around the world, it requires it to take steps only where its search engine is controlled. This is something Google has acknowledged it can do — and does — with relative ease. There is therefore no harm to Google which can be placed on its “inconvenience” scale arising from the global reach of the order.
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This is not an order to remove speech that, on its face, engages freedom of expression values, it is an order to de-index websites that are in violation of several court orders. We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.

And I have trouble seeing how this interferes with what Google refers to as its content neutral character. The injunction does not require Google to monitor content on the Internet, nor is it a finding of any sort of liability against Google for facilitating access to the impugned websites. As for the balance of convenience, the only obligation the interlocutory injunction creates is for Google to de-index the Datalink websites. The order is, as Fenlon J. observed, “only a slight expansion on the removal of individual URLs, which Google agreed to do voluntarily”. Even if it could be said that the injunction engages freedom of expression issues, this is far outweighed by the need to prevent the irreparable harm that would result from Google’s facilitating Datalink’s breach of court orders.

Google argues that, as a result of the California judgment, the hypothetical situation that Groberman J.A. considered to be unlikely has, in fact, arisen: another jurisdiction has found this Court’s injunction to be “offensive to its core values”.

In initiating the U.S. proceedings and seeking a determination that the injunction was contrary to U.S. law, Google appears to have advanced a position contrary to the one it took before Fenlon J. In her judgment, Fenlon J. said at para. 144:

[144] In the present case, Google is before this Court and does not suggest that an order requiring it to block the defendants’ websites would offend California law, or indeed the law of any state or country from which a search could be conducted. Google acknowledges that most countries will likely recognize intellectual property rights and view the selling of pirated products as a legal wrong.

Google now maintains that its right of free speech, including its decision about what websites to link to, is separate and distinct from any objectionable content that may appear on those websites.
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Where an interlocutory or interim injunction has been issued on the basis of evidence and full argument, it may be varied only where the evidence establishes a material change in the facts or circumstances that gave rise to the original order. That reconsideration has been described as an extraordinary measure on which the applicant bears a heavy burden: Abbotsford (City) v. Shantz, 2014 BCSC 2385 at paras. 25–27. The court in Abbotsford said at para. 27:

[27] Without such a threshold before reconsideration may occur, it would be open to parties to essentially re-argue, time and again, matters where they had been previously unsuccessful, simply on the basis of some new evidence, or on the basis of some refined analysis of the evidence previously tendered. The onus on the applicant to establish a material change in circumstance is a substantial one.

I find it is not open to me to revisit all issues relating to extraterritoriality and judicial comity that were before all three levels of court in the prior proceedings. On those issues, the Supreme Court of Canada has defined in advance the change of circumstance that will justify a reconsideration: Google could apply to vary on the basis of evidence that the injunction would “require it to violate the laws of another jurisdiction, including interfering with freedom of expression”. Google says that should be interpreted broadly, noting that the Supreme Court of Canada cited Groberman J.A.’s reference to “core values”. It says the injunction violates core American values by interfering with freedom of speech.

The U.S. decision does not establish that the injunction requires Google to violate American law. That would be the case if, for example, the Datalink Defendants obtained an order from a U.S. court requiring Google to link to their websites. But there is no suggestion that any U.S. law prohibits Google from de-indexing those websites, either in compliance with the injunction or for any other reason. Absent the injunction, Google would be free to choose whether to list those websites and the injunction restricts that choice, but injunctions frequently restrain conduct that would otherwise be prima facie lawful. A party being restricted in its ability to exercise certain rights is not the same thing as that party being required to violate the law. I interpret the words of Abella J. as being primarily limited to the latter situation.

But even if I am wrong in that, Google has not demonstrated that the injunction violates core American values. I assume rights guaranteed by the First Amendment can be regarded as core values, but Judge Davila expressly declined to rule on Google’s submissions that its First Amendment rights were violated by the injunction. Google argues the First Amendment was engaged because it drives the policy underlying both the statute and the decision. In my view, the decision of Judge Davila should not be interpreted to mean more than it actually says, particularly as Google’s application was unopposed and the Court did not have the benefit of any contrary arguments.

The effect of the U.S. order is that no action can be taken against Google to enforce the injunction in U.S. courts. That does not restrict the ability of this Court to protect the integrity of its own process through orders directed to parties over whom it has personal jurisdiction.