It has been a busy time for the Supreme Court of Canada. In a judgment on 23 June 2017, it ruled that Facebook Inc’s forum selection clause was unenforceable in a case involving the application of British Columbia’s Privacy Act. The long-term value of that judgment is, however, questionable given that the Court was split 4-3, with one of the judges (Abella J.) deciding against Facebook, doing so on a different basis to the other three who ruled against Facebook.
The more important decision was handed down on 28 June 2017 in the long-running dispute between Google Inc. and Equustek Solutions Inc., and it is not good news for anyone apart from for Equustek Solutions Inc.
The case has gained a considerable degree of international attention and the background to the dispute is generally well-known. The issue in the appeal was whether Google could be ordered (via an interlocutory injunction) to de-index (with global effect!) the websites of a company (Datalink Technology Gateways Inc., and Datalink Technologies Gateways LLC) which, in breach of several court orders, sell the intellectual property of another company (Equustek Solutions Inc.) via those websites.
The majority of the Court ruled in favour of Equustek concluding that:
[S]ince the interlocutory injunction is the only effective way to mitigate the harm to Equustek pending the resolution of the underlying litigation, the only way, in fact, to preserve Equustek 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. (para. 53)
This conclusion was reached via a belaboured journey through the quagmire of both legal and technical misunderstandings and half-truths. Most of those misunderstandings and half-truths are highlighted with commendable clarity in the dissenting judgment by Côté and Rowe JJ. who also stressed that:
In our view, granting the Google Order requires changes to settled practice that are not warranted in this case: neither the test for an interlocutory nor a permanent injunction has been met; court supervision is required; the order has not been shown to be effective; and alternative remedies are available. (para. 60)
The majority judgment represents a missed opportunity to take the law in a direction recognising the special features of the Internet, to take a step away from the present ‘hyper-regulation’ of Internet content, to recognise the role of geo-location technologies and to properly address ‘scope of jurisdiction’ issues.
However, what is worse, it sets a dangerous precedent that a court of any state may order Google to de-index with global effect, without any real effort to consider the effects this has in other countries or for the development of law in relation to the online environment. I would be most surprised if the hazardous step now taken by the Supreme Court of Canada does not result in a sharp increase in speculative actions directed at Internet intermediaries such as Google.
Moreover, questions must be raised regarding how the majority approached the sovereignty of affected foreign states:
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, with respect, theoretical. […] And while it is always important to pay respectful attention to freedom of expression concerns, particularly when dealing with the core values of another country, I do not see freedom of expression issues being engaged in any way that tips the balance of convenience towards Google in this case. (paras 44-45)
It is interesting to compare this nonchalant attitude to the ongoing discussion of when law enforcement agencies in one state may seek access to data held in another state. In the latter setting one often hears objections raised that such an access to data amounts to an unlawful interference with the sovereignty of the state where the data happens to be located. However, in the Equustek case, the Supreme Court of Canada made an order requiring an alteration to the data held in another country. It seems beyond intelligent dispute that this is much more invasive than is mere access to data.
I am not here seeking to advocate what approach to sovereignty is more appropriate, but one thing is sure; we cannot have it both ways.
Featured image credit: “Canadian Flag” by ElasticComputeFarm. CC0 Public Domain via Pixabay.