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Tremendously impactful decision, regardless of which side of the case you support. Interestingly, the majority addressed a Google argument centered upon concer

by ABCLAW 9y ago

Tremendously impactful decision, regardless of which side of the case you support. Interestingly, the majority addressed a Google argument centered upon concerns regarding the possibility of international censorship: "Google’s argument that a global injunction violates international comity because it is possible that the order could not have been obtained in a foreign jurisdiction, or that to comply with it would result in Google violating the laws of that jurisdiction, is theoretical. If Google has evidence that complying with such an injunction would require it to violate the laws of another jurisdiction, including interfering with freedom of expression, it is always free to apply to the British Columbia courts to vary the interlocutory order accordingly. To date, Google has made no such application. In the absence of an evidentiary foundation, and given Google’s right to seek a rectifying order, it is not equitable to deny E the extraterritorial scope it needs to make the remedy effective, or even to put the onus on it to demonstrate, country by country, where such an order is legally permissible." In other words, if an interlocutory order with international scope would violate foreign freedom of expression legislation (or other legislation in general), it would be possible to seek to vary the interlocutory order by raising those issues specifically. This framework should be familiar to jurists in Canada, as it resembles the Paramountcy doctrine. Whether or not this case will be widely used is unclear. This case is nearly 100% fact-perfect for the Respondent - it honestly looks like a civil-rights test case. It is very possible that imperfect everyday facts provide sufficient fuel for judges to distinguish this case from the case in front of them. The dissent is interesting because it lists a number of pieces of evidence the dissenters would have needed to see before moving forward, including the impact of the first order on sales figures. These dissents often provide counsel with information regarding how to structure future cases in order to avoid outstanding concerns. These are my first pass thoughts. I'll probably read it through another two times before the day is done.

joatmon-snoo 9y ago
Not a lawyer, so I'm happy to see that the passage that caught my eye also caught yours. Other bits that I found interesting: > [107] Google asserts that the Court does not have the authority to make an order of the kind sought. In issue is whether the Court has “subject matter competence”. The plaintiffs and Google agree that the type of order I am asked to make has never before been made by a Canadian court. > [119] I do not accept Google’s submission that the Court only has authority to make an order against a non-party in relation to contempt or to further fact finding necessary to effect justice. Lack of precedent should not be confused with lack of subject matter competence. > [133] I conclude that the Court has authority to grant an injunction against a non-party resident in a foreign jurisdiction in appropriate circumstances. ===== Something I have to wonder about: there's nothing here that speaks to the technical difficulties intrinsic to the process of de-listing a website. Say Google blacklists "www.very-obviously-illegal-under-canadian-law.com". The offending party then registers "www.completely-irrelevant-url-1.com" and "www.irrelevant-url-2.ca" and so on. Is Google expected to permanently block these URLs? What if some of these URLs were obtained illegally (or more generally, what burden of proof must be achieved to demonstrate that a website should be blacklisted)? Is there some way for people - especially prospective buyers for these DNS records - to know that these URLs have been blacklisted? ===== Ruling link: http://www.courts.gov.bc.ca/jdb-txt/SC/14/10/2014BCSC1063.htm http://www.courts.gov.bc.ca/jdb-txt/SC/14/10/2014BCSC1063.ht...
cbhl 9y ago
Should every court and country have the right to demand that things are de-indexed worldwide, now that Canada has done so? Does China have the right to demand Tiananmen Square be de-indexed? Germany and Nazi symbols? Russia and satire about Putin? North Korea? The United States? If not, how do we decide? The previous framework was, "you can demand whatever you want within your borders; if it is unacceptable, Google will leave." This decision throws a bit of a wrench into that.
- ABCLAW 9y ago
  I touched upon this, but honestly this is a very, very large subject that requires familiarity with the Berne Convention and TRIPS/ACTA in order to fully explain. In the Canadian decision, the de-listing order is contingent on that order not being contrary to compliance requirements elsewhere in the world. However, the SCC doesn't have knowledge of all of those laws, nor should it. Accordingly, it stated the burden upon showing a contradiction rests with the applicant, Google, who didn't want to comply with the order. Google would need to cite specific laws they were in contravention of, rather than just pleading that there may, maybe, somehow be a contradictory requirement. What if there wasn't? Should Google still get to plead international comity in that instance? No. Positive freedom of speech legislation might work as an alternate requirement, but this was not plead, and this was not a situation where the speech in question is political or particularly protected. It is a very clear instance where a supplier has fled Canada (and they can't find where they're based) in order to attempt to continue crystal clear trademark violations which are causing actual damage to a Canadian business. The current international trademark framework means that the majority of nations in the world would actually require compliance with this order (well, not exactly, but close enough). The big question is how that machinery should be activated. If the Respondent had the money to pursue passing-off litigation in every jurisdiction, they would likely arrive at a similar result, but functionally, a small company won't be able to pay x200+ times the legal fees for a similar result while their dealflow is being sapped. This decision, even read very broadly, wouldn't provide countries with the ability to de-index items. Countries don't need that ability; they already have it. Most, however, have bound themselves not to exercise it, but certain, like China, actively pursue control as an overt element of their policy agenda. I feel like I'm doing a bit of a disservice to the topic, because there is a lot of small nobs and levers that I can't get into without exploding this into a 20 page memorandum. I am confident in stating that the freedom of speech concerns arising from this case are not as dire as portrayed. Edit: Made the middle a bit clearer.
btilly 9y ago
Google's argument seems very close to not being theoretical. For example the US has a law, see https://www.gpo.gov/fdsys/pkg/PLAW-111publ223/html/PLAW-111publ223.htm https://www.gpo.gov/fdsys/pkg/PLAW-111publ223/html/PLAW-111p... for the exact text, which limits the enforceability of foreign judgements within American courts where they impact free speech. This was litigated in Trout Point Lodge v. Doug K. Handshoe and it was found that a Canadian copyright decision is not necessarily enforceable in a US court. Now given the facts of this case, a US court is likely to uphold the Canadian decision. (That happened in the previously cited case as well.) However not necessarily so. And if not, remanding the decision to a lower Canadian court to decide what should happen in the USA is emphatically NOT the correct course for deciding what legal decision should be enforced in the USA.
- ABCLAW 9y ago
  I agree! This is part of why I am skeptical about the application of this law to other factual scenarios. The court is ruling in the basis of the absence of any evidence provided by Google to rectify the order. Had they pleaded the above law and indicated that there were real and substantial concerns in this case, the outcome may have been different. I think Google didn't because this is a picture perfect passing-off case which is illegal straight across the WTO. --- Edit: This passage from the ruling makes it clear that a key piece of the SCC rationale is very, very specific to this case: "D and its representatives have ignored all previous court orders made against them, have left British Columbia, and continue to operate their business from unknown locations outside Canada. E has made efforts to locate D with limited success. D is only able to survive — at the expense of E’s survival — on Google’s search engine which directs potential customers to D’s websites. This makes Google the determinative player in allowing the harm to occur. On balance, since the world‑wide injunction is the only effective way to mitigate the harm to E pending the trial, the only way, in fact, to preserve E itself pending the resolution of the underlying litigation, and since any countervailing harm to Google is minimal to non‑existent, the interlocutory injunction should be upheld." [Emphasis added] There are a number of requirements for obtaining an injunction. The key case for determining if an injunction will be granted itself is RJR Macdonald. It provides a fairly large bulwark to stopping stupid injunctions from being used. It requires that the issue be serious, that the harm caused by it be irreparable, and that the balance of convenience favor the arrangement sought. These aren't easy hurdles to jump over.
revelation 9y ago
They don't address the most important part: you can't obtain this order in other jurisdictions. Of course in exactly these liberal jurisdictions it is also exceedingly unlikely Google would be in violation for removing something. They also of course don't address the most most important part, which is that a Canadian court ruling on something that is no longer even happening in Canada (since that is where Google already removed the results) has very dubious jurisdiction. This must be about the only good part of treaties like CETA, it gives Google the ability to sue Canada for this nonsense in a court that can't even spell "product relabeling".
Eridrus 9y ago
I don't have an issue so much with this specific case, so much as the fact that it gives political cover to things like the EU's right to be forgotten which I think is total garbage.

by ABCLAW 9y ago

joatmon-snoo 9y ago

Not a lawyer, so I'm happy to see that the passage that caught my eye also caught yours. Other bits that I found interesting: > [107] Google asserts that the Court does not have the authority to make an order of the kind sought. In issue is whether the Court has “subject matter competence”. The plaintiffs and Google agree that the type of order I am asked to make has never before been made by a Canadian court. > [119] I do not accept Google’s submission that the Court only has authority to make an order against a non-party in relation to contempt or to further fact finding necessary to effect justice. Lack of precedent should not be confused with lack of subject matter competence. > [133] I conclude that the Court has authority to grant an injunction against a non-party resident in a foreign jurisdiction in appropriate circumstances. ===== Something I have to wonder about: there's nothing here that speaks to the technical difficulties intrinsic to the process of de-listing a website. Say Google blacklists "www.very-obviously-illegal-under-canadian-law.com". The offending party then registers "www.completely-irrelevant-url-1.com" and "www.irrelevant-url-2.ca" and so on. Is Google expected to permanently block these URLs? What if some of these URLs were obtained illegally (or more generally, what burden of proof must be achieved to demonstrate that a website should be blacklisted)? Is there some way for people - especially prospective buyers for these DNS records - to know that these URLs have been blacklisted? ===== Ruling link: http://www.courts.gov.bc.ca/jdb-txt/SC/14/10/2014BCSC1063.htm http://www.courts.gov.bc.ca/jdb-txt/SC/14/10/2014BCSC1063.ht...

cbhl 9y ago

Should every court and country have the right to demand that things are de-indexed worldwide, now that Canada has done so? Does China have the right to demand Tiananmen Square be de-indexed? Germany and Nazi symbols? Russia and satire about Putin? North Korea? The United States? If not, how do we decide? The previous framework was, "you can demand whatever you want within your borders; if it is unacceptable, Google will leave." This decision throws a bit of a wrench into that.

ABCLAW 9y ago
I touched upon this, but honestly this is a very, very large subject that requires familiarity with the Berne Convention and TRIPS/ACTA in order to fully explain. In the Canadian decision, the de-listing order is contingent on that order not being contrary to compliance requirements elsewhere in the world. However, the SCC doesn't have knowledge of all of those laws, nor should it. Accordingly, it stated the burden upon showing a contradiction rests with the applicant, Google, who didn't want to comply with the order. Google would need to cite specific laws they were in contravention of, rather than just pleading that there may, maybe, somehow be a contradictory requirement. What if there wasn't? Should Google still get to plead international comity in that instance? No. Positive freedom of speech legislation might work as an alternate requirement, but this was not plead, and this was not a situation where the speech in question is political or particularly protected. It is a very clear instance where a supplier has fled Canada (and they can't find where they're based) in order to attempt to continue crystal clear trademark violations which are causing actual damage to a Canadian business. The current international trademark framework means that the majority of nations in the world would actually require compliance with this order (well, not exactly, but close enough). The big question is how that machinery should be activated. If the Respondent had the money to pursue passing-off litigation in every jurisdiction, they would likely arrive at a similar result, but functionally, a small company won't be able to pay x200+ times the legal fees for a similar result while their dealflow is being sapped. This decision, even read very broadly, wouldn't provide countries with the ability to de-index items. Countries don't need that ability; they already have it. Most, however, have bound themselves not to exercise it, but certain, like China, actively pursue control as an overt element of their policy agenda. I feel like I'm doing a bit of a disservice to the topic, because there is a lot of small nobs and levers that I can't get into without exploding this into a 20 page memorandum. I am confident in stating that the freedom of speech concerns arising from this case are not as dire as portrayed. Edit: Made the middle a bit clearer.

btilly 9y ago

Google's argument seems very close to not being theoretical. For example the US has a law, see https://www.gpo.gov/fdsys/pkg/PLAW-111publ223/html/PLAW-111publ223.htm https://www.gpo.gov/fdsys/pkg/PLAW-111publ223/html/PLAW-111p... for the exact text, which limits the enforceability of foreign judgements within American courts where they impact free speech. This was litigated in Trout Point Lodge v. Doug K. Handshoe and it was found that a Canadian copyright decision is not necessarily enforceable in a US court. Now given the facts of this case, a US court is likely to uphold the Canadian decision. (That happened in the previously cited case as well.) However not necessarily so. And if not, remanding the decision to a lower Canadian court to decide what should happen in the USA is emphatically NOT the correct course for deciding what legal decision should be enforced in the USA.

ABCLAW 9y ago
I agree! This is part of why I am skeptical about the application of this law to other factual scenarios. The court is ruling in the basis of the absence of any evidence provided by Google to rectify the order. Had they pleaded the above law and indicated that there were real and substantial concerns in this case, the outcome may have been different. I think Google didn't because this is a picture perfect passing-off case which is illegal straight across the WTO. --- Edit: This passage from the ruling makes it clear that a key piece of the SCC rationale is very, very specific to this case: "D and its representatives have ignored all previous court orders made against them, have left British Columbia, and continue to operate their business from unknown locations outside Canada. E has made efforts to locate D with limited success. D is only able to survive — at the expense of E’s survival — on Google’s search engine which directs potential customers to D’s websites. This makes Google the determinative player in allowing the harm to occur. On balance, since the world‑wide injunction is the only effective way to mitigate the harm to E pending the trial, the only way, in fact, to preserve E itself pending the resolution of the underlying litigation, and since any countervailing harm to Google is minimal to non‑existent, the interlocutory injunction should be upheld." [Emphasis added] There are a number of requirements for obtaining an injunction. The key case for determining if an injunction will be granted itself is RJR Macdonald. It provides a fairly large bulwark to stopping stupid injunctions from being used. It requires that the issue be serious, that the harm caused by it be irreparable, and that the balance of convenience favor the arrangement sought. These aren't easy hurdles to jump over.

revelation 9y ago

They don't address the most important part: you can't obtain this order in other jurisdictions. Of course in exactly these liberal jurisdictions it is also exceedingly unlikely Google would be in violation for removing something. They also of course don't address the most most important part, which is that a Canadian court ruling on something that is no longer even happening in Canada (since that is where Google already removed the results) has very dubious jurisdiction. This must be about the only good part of treaties like CETA, it gives Google the ability to sue Canada for this nonsense in a court that can't even spell "product relabeling".

Eridrus 9y ago

I don't have an issue so much with this specific case, so much as the fact that it gives political cover to things like the EU's right to be forgotten which I think is total garbage.