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Can you help me understand something. Why do they have to cite laws this ruling is in contravention of instead of citing laws that Google is in convention with

Can you help me understand something. Why do they have to cite laws this ruling is in contravention of instead of citing laws that Google is in convention with to prevent worldwide dissemination? One would think that you don't have to prove what the government proposes you do in region X to be illegal there, but rather prove that what you are already doing in region X to be legal there.

ABCLAW 9y ago
The Supreme Court did cite the test governing the provision of interlocutory orders. That test is well known law from RJR MacDonald. There's a bit of a blurb regarding the case in my comment below, but you can look up the case and you'll find the full test and commentary. The government isn't proposing anyone do anything; A private party is, and asked for the court's help. The second private party is very clearly acting illegally and appropriating the value of the first party's brand. They've gone as far as to flee the province to try and dodge the court order which attempts to halt them from doing so. The first party asked google to take down their listings because those listings are the channel through which the illegal brand appropriation is occurring. The court agreed. Google said they didn't want to comply with the order partially on the basis that there might be some compliance contradictions. The court said "Sure, but you didn't plead any evidence that that's the case. We judge what's in front of us. If you're serious, we have a mechanism to deal with it. Make an application like anyone else who wants to amend an interlocutory order. Bring us evidence there's another law which prohibits you from taking the listing down, and we'll amend the order". The reason why courts only judge what's in front of them is so that the other side can actually argue against their points. If Google said "Law X from Country Y prevents us from doing that", the Respondent could reply "The only thing Law X from Country Y does is regulate how sweet twinkies can be, please stop lying to the court". The alternative, forcing the Respondent to prove that there is NO contradiction in every other country, is impossible. Google's response, however, requires 1 list distribution email in legal saying "Anyone have a problem in their country? Let me know". This is the "balance of convenience" portion of the RJR MacDonald test.
- kodablah 9y ago
  The unfortunate part of that test appears to be that the private party can request the moon. A reasonable person might expect a court that is required "judge what's in front of them" to not apply their judgement to foreign jurisdictions. I wonder how this would be applied to a physical storefront from a global retailer that happened to have presence in Canada...I suppose they'd be forced to remove physical non-Canadian products from even their non-Canadian stores. Because hey, retailer, show us where it's illegal for you to remove this product. You can't? Then apply our ruling worldwide. Is my analogy off? Or is it, as I suspect, the fact that the decision is easier to accept digitally part of the reason why it's being levied? The RJR MacDonald test appears incredibly subjective. This test, if in fact it is narrowly construed as show-us-where-you-can't, is a scary defendant test to counter decisions. Or if the test is being vaguely construed for these means, it is equally scary.
  - yorwba 9y ago
    Regarding the retailer example: Suppose they have been selling counterfeit products and a Canadian court orders them to remove the product from all their stores. It would be completely justified in requiring this to happen worldwide. Allowing a modification of the order if it conflicts with law in other jurisdictions is just being generous. However, the only consequences that can be imposed for failing to follow the order relate to doing business in Canada. Any corporation has to decide for themselves whether complying with the local law, even if it requires action somewhere else, is worth it for them. It is in fact quite common for countries to leverage their local power into effecting a worldwide result. E.g. the US embargo on Iran cut off anyone doing business there from access to US financial institutions, and almost nobody wanted to risk that.
    - kodablah 9y ago
      I don't think affecting a worldwide result using laws affecting companies based on your country is the same thing. However I am curious, do you know of any example where a country ordered a company not based in their country to change something for other countries including the country they were based in? Surely there are sweatshop or other working condition examples, I just can't find any where the changes were required to apply for operation in other countries too. I suppose it would be like your answer to my hypothetical, I'm just curious if it has ever happened. > It would be completely justified in requiring this to happen worldwide I disagree if the company isn't based there (assuming by justification you meant to us as humans as opposed to legal justification).

ABCLAW 9y ago

The Supreme Court did cite the test governing the provision of interlocutory orders. That test is well known law from RJR MacDonald. There's a bit of a blurb regarding the case in my comment below, but you can look up the case and you'll find the full test and commentary. The government isn't proposing anyone do anything; A private party is, and asked for the court's help. The second private party is very clearly acting illegally and appropriating the value of the first party's brand. They've gone as far as to flee the province to try and dodge the court order which attempts to halt them from doing so. The first party asked google to take down their listings because those listings are the channel through which the illegal brand appropriation is occurring. The court agreed. Google said they didn't want to comply with the order partially on the basis that there might be some compliance contradictions. The court said "Sure, but you didn't plead any evidence that that's the case. We judge what's in front of us. If you're serious, we have a mechanism to deal with it. Make an application like anyone else who wants to amend an interlocutory order. Bring us evidence there's another law which prohibits you from taking the listing down, and we'll amend the order". The reason why courts only judge what's in front of them is so that the other side can actually argue against their points. If Google said "Law X from Country Y prevents us from doing that", the Respondent could reply "The only thing Law X from Country Y does is regulate how sweet twinkies can be, please stop lying to the court". The alternative, forcing the Respondent to prove that there is NO contradiction in every other country, is impossible. Google's response, however, requires 1 list distribution email in legal saying "Anyone have a problem in their country? Let me know". This is the "balance of convenience" portion of the RJR MacDonald test.

kodablah 9y ago
The unfortunate part of that test appears to be that the private party can request the moon. A reasonable person might expect a court that is required "judge what's in front of them" to not apply their judgement to foreign jurisdictions. I wonder how this would be applied to a physical storefront from a global retailer that happened to have presence in Canada...I suppose they'd be forced to remove physical non-Canadian products from even their non-Canadian stores. Because hey, retailer, show us where it's illegal for you to remove this product. You can't? Then apply our ruling worldwide. Is my analogy off? Or is it, as I suspect, the fact that the decision is easier to accept digitally part of the reason why it's being levied? The RJR MacDonald test appears incredibly subjective. This test, if in fact it is narrowly construed as show-us-where-you-can't, is a scary defendant test to counter decisions. Or if the test is being vaguely construed for these means, it is equally scary.
- yorwba 9y ago
  Regarding the retailer example: Suppose they have been selling counterfeit products and a Canadian court orders them to remove the product from all their stores. It would be completely justified in requiring this to happen worldwide. Allowing a modification of the order if it conflicts with law in other jurisdictions is just being generous. However, the only consequences that can be imposed for failing to follow the order relate to doing business in Canada. Any corporation has to decide for themselves whether complying with the local law, even if it requires action somewhere else, is worth it for them. It is in fact quite common for countries to leverage their local power into effecting a worldwide result. E.g. the US embargo on Iran cut off anyone doing business there from access to US financial institutions, and almost nobody wanted to risk that.
  - kodablah 9y ago
    I don't think affecting a worldwide result using laws affecting companies based on your country is the same thing. However I am curious, do you know of any example where a country ordered a company not based in their country to change something for other countries including the country they were based in? Surely there are sweatshop or other working condition examples, I just can't find any where the changes were required to apply for operation in other countries too. I suppose it would be like your answer to my hypothetical, I'm just curious if it has ever happened. > It would be completely justified in requiring this to happen worldwide I disagree if the company isn't based there (assuming by justification you meant to us as humans as opposed to legal justification).