Equustek again: BC Supreme Court upholds worldwide injunction despite US refusal to enforce

The Supreme Court of British Columbia has refused a motion to overturn its own worldwide injunction requiring Google to de-list certain websites from its search results pending the outcome of an intellectual property dispute.

The decision,^[1] released April 14, 2018, is the latest step in a multi-year legal challenge that has taken the parties from the BC court to the Supreme Court of Canada^[2] and back again, and prompted motions in two countries.

The worldwide injunction

The issue arose from an intellectual property dispute in which an interim injunction was granted requiring Google to de-list the defendants' websites from Google search results pending the outcome of a trial on the issue of whether the defendants' technology (which was for sale on the internet despite efforts to shut down local sites) infringed on the plaintiff's intellectual property. The underlying case has only recently been brought to trial. The motion judge found in 2014 that the only practical way to protect the plaintiff's interests was to block the defendants' websites from Google search results worldwide. The BC Court of Appeal held on appeal that the lower court did indeed have jurisdiction to make an injunctive order of extraterritorial reach.

The Supreme Court of Canada upheld the injunction on further appeal, with the majority offering a pragmatic justification for the order:

The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates - globally. As [the trial judge] found, the majority of Datalink's sales take place outside Canada. If the injunction were restricted to Canada alone or to google.ca, as Google suggests it should have been, the remedy would be deprived of its intended ability to prevent irreparable harm.^[3]

The Supreme Court left the door open to revisit the issue if Google could demonstrate "that complying with such an injunction would require it to violate the laws of another jurisdiction, including interfering with freedom of expression."^[4]

It appeared as though Google might have succeeded in demonstrating this, following a successful challenge to enforcement of the injunction in the United States.^[5] The US District Court in San Jose found^[6] that the BC injunction has the effect of making Google a "publisher or speaker," for the purposes of the United States Communications Decency Act,^[7] of content published online by the defendants in the ongoing BC action. The court found this contrary to section 230 of the Act, which provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider" and, according to case law, "immunizes providers of interactive computer services against liability arising from content created by third parties."^[8]

BC court refuses to vary injunction despite US decision

With this ruling in hand, Google applied to the Supreme Court of BC to set aside its 2014 injunction. Last week, the BC court declined to do so, reasoning that the US District Court decision did not amount to a finding that US enforcement of the injunction would - as it would have to, to satisfy the Supreme Court of Canada's precondition for setting aside the injunction - "[require] Google to violate American law" because "there is no suggestion that any U.S. law prohibits Google from de-indexing those websites, either in compliance with the injunction or for any other reason," and "[a] party being restricted in its ability to exercise certain rights is not the same thing as that party being required to violate the law."^[9] Moreover, the BC court noted, the US District Court had declined to find that the injunction violated the First Amendment (i.e. freedom of expression), so it could not be said that the injunction "violates core American values"^[10] including freedom of expression.

Finally, the BC court signalled the independence of its decision-making process from its reception abroad (even in respect of orders intended to have international effect), noting

The effect of the U.S. order is that no action can be taken against Google to enforce the injunction in U.S. courts. That does not restrict the ability of this Court to protect the integrity of its own process through orders directed to parties over whom it has personal jurisdiction.^[11]

Conclusion

This most recent decision confirms that companies challenging worldwide injunctions issued by Canadian courts will face a high bar in convincing those courts to reconsider their orders, even where those orders prove to have limited practical effect outside Canada.