Within 14 days of the date of this judgment, Google Inc. is to cease indexing or referencing in search results on its internet search engines the websites contained in Schedule A…
I would not blame you if you thought that order above was from the Google Right to be Forgotten case. It is not. It is from Canada. And it will be seriously precedent-setting. Well, if the appeals don’t gut it first. We’re a long way from this being over, but we’ve had two important decisions so far, the most recent one last week, so I guess I better chronicle them so when we end up in the Supreme Court of Canada in three years, I can just refer back to this post because I’m lazy. Let’s dive in.
So in June, the Supreme Court of British Columbia released its decision in a case called Equustek Solutions Inc. v. Jack. Be prepared for possible “you don’t know Jack” jokes in this post. Then last week, the British Columbia Court of Appeal released a decision called Equustek Solutions Inc. v. Google Inc. You may have noticed that Google was not named in the first case. You’re very sharp! All will be explained, please be patient. Also, too, know that the BC “Supreme Court” is actually a lower court than the BC Court of Appeal. Seems counter-intuitive, I know. I don’t know why, don’t ask. Shut up is why. OK let’s do this in chronological order, my favourite of all the orders. Get comfortable and perhaps grab your beverage of choice, because this will take a while.
BC Supreme Court
Let’s start off by quoting paragraph number 1, because it’s a lovely introduction to why this is a big fucking deal:
The plaintiffs apply for an interim injunction restraining two non-parties, Google Inc. and Google Canada Corporation, from including the defendants’ websites in search results generated by Google’s search engines. This application raises novel questions about the Court’s authority to make such an order against a global internet service provider.
Novel indeed! And because you read the quote at the top of this post, you already know that the Court did in fact think it had the authority to order Google to alter its search results worldwide (sorry, I guess a spoiler alert was needed). You think Google won’t be taking this all the way to the Supreme Court (of Canada)? Yeah. OK we’re ahead of ourselves here, I’m giving commentary when you don’t even know what the case is about. Let’s fix that.
Equustek (and another company, and a dude, so let’s just go with “Plaintiffs” from here on in) sued Jack (and a bunch of other people, and a bunch of companies, so let’s just go with “Defendants” from here on in) for intellectual property infringements. You see, Plaintiffs made a product which is just some piece of industrial equipment that does something industrial. Defendants made a competing product allegedly using Plaintiffs trade secrets. The Defendants called their product the GW1000, which sounds fucking cool. The Defendants sold the GW1000 through a bunch of websites. The Plaintiffs sued, and the Court had made many orders prohibiting Defendants from selling the GW1000 on the websites, but Defendants ignored the orders and continued to operate the websites and sell the infringing product.
So how does Google fit in? Let the Court explain:
Google is not a party to this action. (…) Google acknowledges that it has the ability to remove websites from its search engine results, and routinely does so in various situations.
Following the December 2012 order prohibiting the defendants from carrying on business through any website, Google voluntarily complied with the plaintiffs’ request to remove specific webpages or uniform resource locations (“URLs”) from its Google.ca search results (i.e. from searches originating in Canada), removing 345 URLs in total. However, Google is unwilling to block an entire category of URLs, sometimes referred to as “mother sites” from its search results worldwide.
I don’t blame you Google! You are already being more than accommodating IMHO. Anyway, Plaintiffs wanted an injunction forcing Google to remove the URLs from the searches worldwide. Google said dude, that’s kind of overkill. And this dinky Canadian court does not have the authority or jurisdiction to make such an order. Well the dinky Canadian court showed them!
First, the Court asked if they had what’s called “territorial competence” over Google. There is some discussion about standards of proof that’s boring, so I won’t bore you with it. Then the Court basically has to ask if there is a “real and substantial connection” to BC in the case – does Google carry on business in British Columbia? Well duh, people in BC search Google and companies in BC buy ads on Google. You know, LIKE EVERY OTHER FUCKING PLACE ON THE PLANET. Ahem. Anyway, they do business, there is territorial competence.
Next, the Court has to ask if BC is the most appropriate forum. Who wants to learn some fancy Latin? There is a legal principle called forum non conveniens. It says that even if a Court establishes it has jurisdiction, it may decline to exercise it if there is a better “forum” (i.e. another court in another place) that is in a better position to hear the case, or make an order, or whatever. Here, Google said California is better, because that is where its head office is, and that’s where the search results come from. The Court goes through a bunch of analysis and factors, looks at Google’s arguments and basically concludes “meh”. Sure, California courts would be good too, but they are not really “better”.
Finally, the Court asks the basic question of “should we grant the order”? An interesting quote in this section:
The plaintiffs and Google agree that the type of order I am asked to make has never before been made by a Canadian court.
Yeah, no shit Sherlock. Google argued that they were not even a party to the litigation, so the Court has no authority to grant the order. The Court says nice try Google, you don’t know Jack, we’ve got plenty of precedent for making orders against non-parties, so we can make such an order. But should we? Well you read the spoiler so you know. But there is some pretty juicy stuff in there about Google and what it does, and how the Court reacts. So Google says it is just a passive indexer of websites, they shouldn’t be responsible for policing the internet, yada yada, you know how that goes. The Court replies:
Whether Google is a passive indexer with no control over content has been the subject of litigation in other jurisdictions: González, Max Mosely, and Trkulja. However, the order sought in the present case would not require Google to monitor the content of the defendants’ websites. Rather, the order would simply require Google to remove all of the defendants’ websites from its searches. To put it simply, it is not a question of blocking what is being said, but rather who is saying it. The order is, in many ways, only a slight expansion on the removal of individual URLs, which Google agreed to do voluntarily.
I like that bolded line. I am not sure it’s good analysis, but it’s well-said. But I also think it goes to the heart of the issue for me. We’ll get back to that in the analysis.
Anyway, Google also says the order is too broad, it should just block the sites from google.ca. The Court duly notes that any idiot can just use the .com, even in Canada! But the fact is, Google was contributing to the harm to Plaintiffs:
The plaintiffs have also established that Google is inadvertently facilitating that harm through its search engines. While there are other search engines, Google does not contest the plaintiffs’ assertion that Google’s position as the search engine used for 70-75% of internet searches means the defendants will not be commercially successful if they cannot be found through Google’s search services.
Then Google admits (big mistake) that “nah, it’s really no big deal to remove the URLs, we could do it easily we just don’t want to.” Order: Granted.
The Court of Appeal
Yes we’re only halfway through this blog post. Perhaps you’d like to get a snack and / or go to the bathroom, or maybe sit back and think quietly for 30 or 60 seconds about a product or service you’d like to purchase.
So Google appealed. Well, that’s not technically true. They made an application that asked the Court of Appeal for two things. First, they asked for permission to appeal (“leave to appeal” in legal lingo) the judgment that they had to block the URLs. Depending on the case and the facts and the jurisdiction and all sorts of stuff, you sometimes have to get permission to appeal a judgment, it’s not automatic. Second, Google asked for a temporary stay of the order pending said appeal, meaning that the Court of Appeal would say “whoa kids, let’s slow down here, Google doesn’t have to do the URL blocking until we actually decide whether or not they have to block the URLs.”
We can dispose of the first one nice and quick. A Court of Appeal will usually grant leave if it is a cool case and if it is important. What we call “novel questions of law”. Here you go:
This is clearly a case where there are arguable novel and complex issues raised on appeal and the importance of those issues to the parties, and generally, call for the granting of leave to appeal. For that reason I granted leave
Not to sell the Court short, they do actually explain why they got to that conclusion. They explained why the case is important. But you already figured out this case is important, duh, so no worries.
So once the leave to appeal is granted, should the Court order a stay of the order to block the URLs pending the appeal? NYET. As usual in law, we’ve got a series of factors to determine whether to do something, like in this case grant the stay. First, is there some merit to the appeal? Well the Court already said it’s important and granted leave, so yes.
The other two factors the Court considers together. They are:
– irreparable harm will be occasioned to Google if the stay is refused; and
– the balance of convenience favors a stay.
Google argued that it will suffer harm in the public’s eye, and in other ways. The Court (rightly) points out to Google that their reputation will not be harmed by following a court order! I think what will be important in the future appeal is this argument:
(Google) will suffer irreparable harm as a result of the precedent established by the granting and enforcement of the injunction. It says the fact a Canadian court has made an order limiting worldwide search results and the fact the order has not been stayed pending an appeal, will have serious and damaging effects on its clients and its business. It argues the enforcement of the injunction and presumably its observation by Google may result in other jurisdictions regarding Google as a vehicle for global enforcement of their laws. It makes a “floodgates” argument
That’s a good point! Canada should probably not have jurisdiction over the rest of the world. But I think the problem for Google is that there is a difference between the harm of the order generally (which will be the subject of the full appeal) and the harm in the Court of Appeal not granting the interim stay. Oh look! The Court agrees with me:
In order to address this allegation of irreparable harm it is necessary to isolate the harm that is said to arise from the precedent established by the judgment of the British Columbia Supreme Court, on the one hand, from the harm said to result from the refusal to stay that judgment pending the hearing of the appeal, on the other.
So the Court is saying, sure, maybe there is harm from the original order, but we’ll decide that on appeal. There is no harm that will result of if we don’t stay the order now. The balance of convenience does not favour a stay. Stay of the order – denied.
Super Happy Funtime Analysis Hour
Congratulations on making it this far! I’ll be brief. Both courts did a decent job here I think. The decisions are well-reasoned, well-written, decently thought out, and intelligent. However I still think the Court of Appeal will overturn the order in the end. Remember that fancy Latin language from earlier? Yeah, I think that’s going to be a problem. It really should be a California court making this order. Take a look at this from the Supreme Court:
How, Google asks, can this Court force Google to take steps outside of British Columbia? Google raises a good point. Traditionally, courts have not granted injunctive relief against defendants who reside outside the jurisdiction.
Darn right Google raises a good point! The Court goes through some rigmarole about how there are exceptions to injunctions granted outside the jurisdiction, but I ain’t buying it. I really think the “floodgates” argument is a good one. Anyone can go into any court anywhere and get Google to do something worldwide? That would be fucked up. Look, I am the first to admit enforcing laws in the global internet age is a pain in the ass; I deal with it every day in my practice. Not sure this is the solution.
And there is something else to consider. In this case, there was intellectual property infringement. But if we set the precedent that Google should block a URL worldwide from Canada for that, where does it stop? Then we do it for defamation? What about a site that criticizes Israel or Palestinians which may be hate speech somewhere? I always say I am no fan of Google, and I mean it. Fuck Google for a lot of the crap (*cough* privacy *cough*) they do. But that doesn’t mean I want them punished by forcing them to be the internet’s cops. Where does it end? Don’t force me to switch to Bing.
And remember this quote I bolded above – “To put it simply, it is not a question of blocking what is being said, but rather who is saying it.” Well that’s a load of crap. The Court itself said that 70-75% of searches are on Google. If Google blocks URLs worldwide, you are indeed effectively blocking what is being said, because no one will see it. Do we want that?