My two loyal readers may remember the case of Equustek Solutions Inc. v. Google Inc. OK, even I admit I had trouble remembering it, since I wrote about it almost a year ago and a year is forever in internet time. But it sounded vaguely familiar, so I Googled myself (ha!). And what I found was that I was quite prescient, for the title of that post was “This hugely important Google case will be going on for a while…” Well I got that right! I wrote in that post that “I still think the Court of Appeal will overturn the order in the end”. Well about 10 days ago the BC Court of Appeal decision came down and I got that… less right.
So let’s take a step back and recap what happened a year ago, and more than a year ago, because no doubt you have better things to do than re-read that post from last year. Boy it’s long! I didn’t know I could write that much. Because I also have better things to do than read what I wrote last year, let’s use the case’s handy summary feature to see where we are:
The plaintiffs alleged that the defendants designed and sold counterfeit versions of their product. They sued for trademark infringement and unlawful appropriation of trade secrets, and obtained injunctions prohibiting the defendants from carrying on their business. The defendants continued to carry on business, but did so in a clandestine manner using a variety of websites, and relying on web search engines to direct customers to those sites. The plaintiffs successfully applied to the court for an injunction prohibiting Google, which operates the world’s most popular search engine, from delivering search results pointing to the defendants’ websites. Google appealed…
When I wrote about this last year, we were at the stage where Google had asked the BC Court of Appeals for permission to appeal that worldwide order to not have those search results appear. The Court of Appeals said, sure, it’s a lovely little novel question of law this worldwide injunction business, we should look into that! And look into it they did. And the results are exactly what I was… not expecting.
So Google didn’t like the worldwide injunction for a whole crapload of reasons. Here, let the Court list them:
Google contends that the injunction ought not to have been granted because the application did not have a sufficient connection to the Province to give the Supreme Court of British Columbia competence to deal with the matter. It also argues that the injunction represents an inappropriate burden on an innocent non-party to the litigation. Further, it contends that the extraterritorial reach of the injunction is inappropriate and a violation of principles of comity. Finally, Google contends that the injunction should not have been granted because of its effect on freedom of speech.
This is what we in the legal biz call “throwing the kitchen sink” at the Court. See, we’ve got Reason A why the lower court decision was stupid. Don’t like that? Well we also have Reasons B through D, maybe we can interest you in one of those? As a litigator, I used to do that all the time. Sometimes it worked! This time, not so much. An unfortunate consequence of this lawyering tactic is a long decision you have to read. Ugh. OK, let’s get it over with.
First the Court looked at a few preliminary matters. Let’s skip those, they’re not relevant. Next, the Court reviews the facts for 15 paragraphs. You remember the facts from last year, right? So we’ll skip those too. Hey this is going better already!
Getting down to the actual law here, the Court first looks at whether they have in fact jurisdiction under BC Law. The specific law (the “CJPTA”) says:
3. A court has territorial competence in a proceeding that is brought against a person only if
(e) there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based
There is some rambling (yet thorough) discussion as to what “proceeding” means, if that includes an injunction against a third party as part of a larger case. It does. The Court then says the lower court found there was a real and substantial connection to B.C., who are we to judge, that’s good enough there is jurisdiction, let’s move on!
Next the Court has to look at “Constitutional Limitations on Jurisdiction and Competence”, because Google says the Canadian Constitution limits how a Court can take jurisdiction. The Court basically blows this off, because Google didn’t really show anything. Seems like Google knew this was a loser argument.
Pay close attention here, because this next issue is complicated, and it has Latin! The Court needs to answer the following question – did the lower court have in personam jurisdiction over Google? Oh fuck I am going to have to explain that, right? At least it means what it sounds like – jurisdiction over the person. Oh, and a “person” in law is not necessarily a human being. As the US Supreme Court said in Citizens United, corporations are people too! So while the Court already concluded there was “subject matter” jurisdiction – the basic intellectual property law violations happened in BC – the Court has to ask:
There remains, however, a question of whether Google itself is substantially connected with British Columbia in a manner sufficient to allow the courts of this Province to assume in personam jurisdiction over it.
Didn’t I just say that? Anyway, this is the important point of this decision, and it comes down to that CJPTA law thingie again, which also says there is a real and substantial connection if the person (Google) carries on business in BC. Google says that “some form of actual not virtual presence is required” in the jurisdiction. The Court cites the lower court’s findings about Google’s “business” in BC, and says, yeah, that’s pretty cool, you don’t need no stinking office in BC to do business here. Specifically:
While Google does not have servers or offices in the Province and does not have resident staff here, I agree with the chambers judge’s conclusion that key parts of Google’s business are carried on here. The judge concentrated on the advertising aspects of Google’s business in making her findings. In my view, it can also be said that the gathering of information through proprietary web crawler software (“Googlebot”) takes place in British Columbia. This active process of obtaining data that resides in the Province or is the property of individuals in British Columbia is a key part of Google’s business.
Sure, sell some ads and have your tech spider through some websites is good enough for us! But then Google says, well we do that everywhere in the world FFS. Any Court could take jurisdiction and grant an injunction over us! And then the Court says, hmm, you may have a point there:
Google raises the specter of it being subjected to restrictive orders from courts in all parts of the world, each concerned with its own domestic law…. Courts must, in exercising their powers, consider many factors other than territorial competence and the existence of in personam jurisdiction over the parties. Courts must exercise considerable restraint in granting remedies that have international ramifications. I turn, then, to consider the nature of that restraint.
So that’s what the Court does. It examines, over about 25 paragraphs, the limits on granting injunctions. This is not really a question of jurisdiction per se, it’s more about the actual injunction and how far a court can go, especially against third parties. Google argues that “because the plaintiffs have not alleged that Google has committed (or is about to commit) a legal wrong against them, they are not entitled to an order against Google.” Ha! Good luck with that stupid argument Google. Courts issue orders against third parties all the time, things like (this is for you lawyers out there because I am not explaining it to the rest of you) Norwich orders. The Court agrees with me. It goes through a long analysis of the jurisprudence on injunctions and concludes:
the granting of injunctive relief against third parties as an ancillary means of preserving the parties’ rights is a well-established jurisdiction of the courts.
Google is running out of arguments now! Google next says that when such orders have extra-territorial effect (i.e. effects outside of BC in this case), we have to be extra careful. The Court actually sorta kinda agrees, we do indeed have to be careful! BUT, and this is a big BUT, Google, it does not mean we can’t grant those injunctions at all:
Issues of comity and enforceability are concerns that must be taken into account, but they do not result in a simple rule that the activities of non-residents in foreign jurisdictions cannot be affected by orders of Canadian courts.
OK I have been dreading this moment when I have to explain “comity”. Basically it’s this: “we over here in Jurisdiction A will respect your judgments and laws, Jurisdiction B, if you respect ours.” Hey that’s pretty good! Put it on a t-shirt. So in this case, the Court asks:
From a comity perspective, the question must be whether, in taking jurisdiction over this matter, British Columbia courts have failed to pay due respect to the right of other courts or nations
The only comity concern that has been articulated in this case is the concern that the order made by the trial judge could interfere with freedom of expression in other countries
Well laa dee da, all you fancy countries with your freedom of expression. But meanwhile, the Court says no problemo there:
It has not been suggested that the order prohibiting the defendants from advertising wares that violate the intellectual property rights of the plaintiffs offends the core values of any nation
What the Court does next is interesting. It goes on to list a shitload of cases from around the world (well, Europe) where courts issued orders that would have extraterritorial effect. It includes the Google Right to be Forgotten case, and numerous others that all seem to have Google or Yahoo! in the title. What, no Bing? None of those foreign cases had a problem with comity. Basically, all these other courts could do it, why can’t we, huh?
The Court then finishes up with the actual legal standard for granting an injunction, which we’ll skip because it’s not internet-y, but suffice it to say the standard was met. Then there is a final bit about freedom of speech on the internet, but the Court basically says seriously? Selling illegal products on the internet is not free speech, dumbass.
Point is, the injunction order is fine. Suck it, Google.
Superterriffic happy funtime analysis hour
This decision has taken a beating from plenty of lawyers. Here, from the Law Times: “B.C. ruling on jurisdiction over Google ‘disastrous’“. Michael Geist repeated what he said a year ago:
While there is much to be said for asserting jurisdiction over Google – if it does business in the jurisdiction, the law should apply – attempts to extend blocking orders to a global audience has very troubling implications that could lead to a run on court orders that target the company’s global search results.
Well I should probably pile on, right? I mean, the Court made a fool of me! I said they would overturn the lower court’s injunction and they did not. And I’m supposedly an expert in these things. The problem is, I am having real difficulty finding any serious flaws in the the Court’s logic, reasoning, or analysis. They did a decent job applying the current BC and Canadian law in this particular case. Maybe, just maybe, you could argue that spidering websites and selling ads is not really “doing business”. But you could just as easily argue it is. So I don’t think this outcome is the Court’s fault really. Now, let me quote myself from last year:
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?
Well maybe I am a bit of a dumbass myself. I made a “slippery slope” argument. Now, don’t get me wrong, I still worry about the slippery slope, and that’s what Geist and the Law Times are worried about too – the future implications. But it is not a Court of Appeal’s job to worry about a slippery slope. It is a Court of Appeal’s job to look at the law as it applies to the case at hand, and to determine whether the lower court made a mistake of law. This Court did its job here.
Look at this headline from the Washington Post about the case – “Censorship tourism in British Columbia?“. That is some quality hyperbole, must have learned it from me. But really, is blocking links to a website selling illegal goods censorship? No, it is not. Back to Geist from last year:
what happens if a Russian court orders Google to remove gay and lesbian sites from its database? Or if Iran orders it remove Israeli sites from the database? The possibilities are endless since local rules of freedom of expression often differ from country to country.
I agree the possibilities are endless indeed! BUT it’s really not the job of a BC court to worry about an Iranian court. And even if it sort of is, via this “comity” business, the Court here specifically said this decision would not offend (the courts of) other countries. If a Russian court were to look at comity, it should conclude that a Canadian court would be offended by an order banning gay sites and not grant such an order. Also, too, here the Court of Appeal says it is specifically not a freedom of expression issue.
Look, I have said it once if I’ve said it a thousand times, “the internet crosses borders. For the most part, the law does not.” Enforcing the law in the international “jurisdiction” of the internet is essentially impossible. But if a Canadian court properly analyzes its own laws and comes to a proper decision, we, as lawyers, cannot say they made a mistake because of some future, potential, possible, maybe implication on a different set of facts in a different set of circumstances in a different country.