Orders against Cyberspace
The online world sometimes feels like the wild west, where those with less-than-honorable intentions can use the distributed nature of the internet to hide outside the jurisdiction of domestic courts. By hiding out in plain sight in a different jurisdiction some actors have been able to defy court orders without consequence. However, while the technical structure of the internet is distributed, the reality is that the way in which most of the world access and uses it has become quite centralized. This provides the courts and litigants with a potential avenue to seek relief.
In the case of Google Inc. v. Equustek Solutions Inc., a small British Columbia technology firm had sued a distributor, claiming that the distributer had re-labeled their product, passing it off as their own, and further, that the distributor then used confidential information it had obtained to create a competing product, cutting into the plaintiff’s business. On its face the case is a fairly simple matter that likely would have garnered little to no attention outside of the parties themselves. However, during the course of the litigation, the distributor essentially abandoned the litigation, and moved from the jurisdiction. It did however continue to operate, and continued to market and sell the products in question online. The plaintiff, in an effort to halt the activity and protect its market, took advantage of the way most of us browse the web, and brought a motion seeking an order compelling Google to remove all references to the distributor from its search results. The thinking, one would expect, is that if it disappears from Google it disappears for the vast majority of internet users. Importantly, the order the plaintiff sought was not confined to Canada, but rather it sought an order compelling Google to remove the results from its databases word wide.
Google resisted the request, and the matter ultimately went to the Supreme Court of Canada. The Supreme Court upheld the decisions of the lower courts, allowing the injunction. The Court applied pre-existing tests for the granting of interlocutory injections, and recognized that there was precedent for the granting of orders with worldwide effect, such as orders freezing assets. Google and a number of interveners however argued that the case could set a troubling precedent. Other cases could use the same mechanism to seek to oppress content because they disagreed with it, or because it was potentially embarrassing. Google would then be forced to make a decision to comply, or risk its local operations by ignoring an order of the Court.
The case is a good example of the difficulty courts and legislatures are having in adapting existing laws and practices to governance of the online world.
Matthew Harmes is an associate at the law firm of Cobb & Jones LLP. For more articles, visit the Library Page at www.cobbjones.ca