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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 re

by 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).
- xarball 9y ago
  Agree 100% that this test sounds like asking someone to prove a negative in order to force action at their expense. The retailer in this case is Google, and their entire business model rides on being able to ship an information product worldwide - that is, their index. How is it Google's responsibility to no longer aggregate their index, since they are now expected to deviate from the information generated from the expressions of others' statements, upon which its index was originally based? Is a quotation no longer an acceptable device to publish or derive information, in Canada? Unless Google is committing a crime by repeating what was said, or pointing to someone who said something, then why is it legally permissible for Canada to order Google to do anything at all here? Even if Google is citing someone who did something illegally in their index, is it a crime for Google to quote what was said, and to publish the fact that persons said something -- nationally, let alone internationally? It sounds like this defense was screwed up on two fronts: 1) Where does Canadian law allow anyone to remove or suppress what was recorded in a non-binding quote containing what was previously observed to have been published by others, in a civil trial? 2) Freedom of speech, as a form of detailing quotes in the aggregate, in any other country in the world is not compatible with the idea of removing recorded quotes from the aggregate product of what was internationally found in a survey. That is the precedent. What was and will be found on the internet from the standpoint of other countries Internet connections, does not change just because Canada doesn't like it. Pursuing #2 seems be the best option since the courts completely breezed over #1. The need to stick to the fundamentals that their product has never actually guaranteed correctness or truth, nationally or internationally. The Google product guarantees an aggregation of quotes. The product attempts to arrive at correctness or truth by algorithmic-ally deriving meaning from the aggregate, not the other way around. ... Google (the product) does not derive the aggregate by manually specifying exceptions one after the other whenever John Doe catches someone lying on the internet. To do so on an international scale would forcefully change Google (the product), not in compliance with any Canadian law (afaik), and not in compliance with any international precedent. It would be akin to suing a newspaper to have information forcefully removed, in all countries of the world, even though it was published with valid quotes and perfect reporting. If Google (the product) wanted to do this in a way that was respectful of the nature of the request, that it is based on a quote, it would be better to think of the court's decision as being a qualifier on the nature of the information -- "This website may be untrustworthy. (Legal Information: ...). But this request cannot be compelled internationally, because it is not Google's responsibility to ascertain correctness of the contents of a quote. For something that was internationally said of the quote, Google can internationally do with that information whatever they please. The fact that the Google product is an aggregation of quotes, I think, has escaped the courts. And that may be what they are accidentally glossing over when trying to compel Google to change those quotes, internationally, in a civil trial.

by ABCLAW 9y ago

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).
xarball 9y ago
Agree 100% that this test sounds like asking someone to prove a negative in order to force action at their expense. The retailer in this case is Google, and their entire business model rides on being able to ship an information product worldwide - that is, their index. How is it Google's responsibility to no longer aggregate their index, since they are now expected to deviate from the information generated from the expressions of others' statements, upon which its index was originally based? Is a quotation no longer an acceptable device to publish or derive information, in Canada? Unless Google is committing a crime by repeating what was said, or pointing to someone who said something, then why is it legally permissible for Canada to order Google to do anything at all here? Even if Google is citing someone who did something illegally in their index, is it a crime for Google to quote what was said, and to publish the fact that persons said something -- nationally, let alone internationally? It sounds like this defense was screwed up on two fronts: 1) Where does Canadian law allow anyone to remove or suppress what was recorded in a non-binding quote containing what was previously observed to have been published by others, in a civil trial? 2) Freedom of speech, as a form of detailing quotes in the aggregate, in any other country in the world is not compatible with the idea of removing recorded quotes from the aggregate product of what was internationally found in a survey. That is the precedent. What was and will be found on the internet from the standpoint of other countries Internet connections, does not change just because Canada doesn't like it. Pursuing #2 seems be the best option since the courts completely breezed over #1. The need to stick to the fundamentals that their product has never actually guaranteed correctness or truth, nationally or internationally. The Google product guarantees an aggregation of quotes. The product attempts to arrive at correctness or truth by algorithmic-ally deriving meaning from the aggregate, not the other way around. ... Google (the product) does not derive the aggregate by manually specifying exceptions one after the other whenever John Doe catches someone lying on the internet. To do so on an international scale would forcefully change Google (the product), not in compliance with any Canadian law (afaik), and not in compliance with any international precedent. It would be akin to suing a newspaper to have information forcefully removed, in all countries of the world, even though it was published with valid quotes and perfect reporting. If Google (the product) wanted to do this in a way that was respectful of the nature of the request, that it is based on a quote, it would be better to think of the court's decision as being a qualifier on the nature of the information -- "This website may be untrustworthy. (Legal Information: ...). But this request cannot be compelled internationally, because it is not Google's responsibility to ascertain correctness of the contents of a quote. For something that was internationally said of the quote, Google can internationally do with that information whatever they please. The fact that the Google product is an aggregation of quotes, I think, has escaped the courts. And that may be what they are accidentally glossing over when trying to compel Google to change those quotes, internationally, in a civil trial.