Friday, 18 August 2017

Google Seeks Declaration that World-Wide Internet Search Injunction is Unenforceable

     Google is bringing a constitutional challenge in the United States against the injunction recently affirmed by the Supreme Court of Canada in Google v. Equustek Solutions 2017 SCC 34, requiring Google not to display any part of certain websites on any of its search results, anywhere in the world. 

     The Supreme Court held that the injunction had to extend world wide, not just to Canada, or, in order to achieve its purpose, which is to prevent Datalink Technologies from selling internationally products that are based on designs stolen from Equustek.    The Court pointed out that the order does not affect speech of the kinds for which protection is warranted.

     Nonetheless, last month Google sued in the U.S. Federal Court for the Northern District of California (case number 17 CV 04207, in San Jose) for a declaration that the injunction is unenforceable on the grounds that it offends the U.S. Constitution’s First Amendment guarantee of freedom of expression, and the Communications Decency Act, which grants immunity to providers of interactive computer services for content created by others.   

Tuesday, 18 July 2017

U.S. judgment against Omar Khadr not likely enforceable in Canada

     The judgment, from the U.S. District Court in Utah in Morris and Speers v. Khadr (415 F. Supp. 2d 1323 (D. Utah 2006) is a default judgment, issued when Omar Khadr was a prisoner at Guantanamo Bay, Cuba.    According to the reasons for judgment, “given the obvious difficulties of serving process on Mr. Khadr personally… the plaintiff obtained leave to “serve notice by publication”, specifically, “by publishing one notice in a newspaper of general circulation in the Toronto Canada area, and by posting the complaint on the website”.  There was no response from Khadr.    The Court proceeded to award damages of US$102,600,000, which was the amount claimed, plus costs.     

     One well-established defence to the enforcement of foreign judgments is breach of natural justice, for example if the defendant did not get proper notice of the proceeding.   Speers v Khadr is an excellent example of such a case. 

     It comes as no surprise that serving the papers on Khadr at Guantanamo is difficult.   After all, Khadr was denied access even to legal counsel for lengthy periods.   If a process server cannot serve papers there, and if for some reason the papers cannot be mailed to Khadr there, what are the chances that family members could bring the papers to him?  The jail is not easily accessible for someone living in Canada.    Presumably family members could inform him by telephone, but only if they knew themselves.  Why then did the court not require the plaintiffs to serve the papers on his relatives?     

     The Court chose service by publication instead.  Seriously, what are the chances the plaintiffs would pick, out of the four or more newspapers of general circulation in Toronto, the newspaper that the relatives usually read, if indeed they usually read any newspaper?   There are other sources of news, after all, including radio and television.   Even if the plaintiffs picked the right newspaper, the Khadr family might not read it everyday.  What are the chances they would read it on that one single day when the notice appeared, and that they would see the notice, which may well be an inconspicuous one in the legal notices section     In short, why would anyone think it likely that the proceeding would come to Khadr’s attention?  Quite possibly the plaintiffs aimed to obtain a judgment without Khadr ever knowing of the proceeding.    

    Neither Khadr, nor pretty much anyone, would ever be able to pay more than a tiny fraction of US$102,600,000, even if he worked all his life and paid every penny of his earnings to Speer.  One would expect that a court would require that great care be taken to ensure the defendant gets notice of such a big claim, or for that matter, even a claim one thousandth that size.       

     Even if the proceeding did come to his attention, would he even be able to instruct a lawyer for his defence, or be able to give evidence?   

     In short, Khadr has a very strong defence to enforcement. The U.S. court seems to have been highly sympathetic to the plaintiffs, and chillingly indifferent, or worse, to the defendant's right to notice.  If the judgment is held enforceable notwithstanding, one would have to question whether the enforcing court respected the principle of the rule of law.  

Friday, 30 June 2017

SCC Upholds Injunction Against Google - Comment Part I

            In a much-anticipated decision, the Supreme Court of Canada has upheld an injunction issued by the British Columbia Supreme Court requiring Google not to display any part of certain websites on any of its search results, not just at or in Canada, but also at and anywhere in the world:   Google v. Equustek Solutions  2017 SCC 34. 
The case started when Equustek, a manufacturer in British Columbia,  sued Datalink Technologies, a former distributor of Equustek’s products, for passing off Equustek’s products as its own, stealing Equustek’s designs to make competing products, and the like.  Datalink initially defended the action, but later abandoned its defence and moved from British Columbia to an unknown location where it continued to market the products online.   Several injunctions directing Datalink to cease were ignored, leading the courts of British Columbia to conclude that the only way to stop Datalink was to prevent its websites from being found on internet searches.      See my posts on earlier stages of this case, on July 9, 2015 and Feb. 18, 2016. 

            The case drew a lot of attention.  At the Supreme Court there were thirty five intervenors, including some from the United States.  The decision was covered in the international media including the Guardian.        
However, the story is somewhat overhyped.  It is not the first time a court issued an injunction affecting what can be seen online in a foreign country.  Earlier this year the European Court of Justice upheld an order of a French court to remove content from websites elsewhere in the European Union:  Concurrence SARL v Samsung Electronics France  (see my blog dated Feb. 27, 2017).  That content violated a commercial agreement.

As well, Google did not raise new, unsettled legal issues in its appeal.   Its first argument was that non-parties cannot be the subject of an interlocutory injunction.  In fact, it is already settled law that non-parties can be bound by injunctions.     An example would be a Mareva injunction that is commonly directed against not only the defendant but also the defendant’s bank, so that the defendant cannot have its bank move funds. Another example would be an injunction requiring non-party internet service providers to block the ability of customers to access certain websites, in order to prevent facilitating infringements of trademarks. Just like in the Google case, these injunctions prevent a non-party from facilitating the conduct of a defendant the court seeks to restrain.      

Google’s second argument was that an interlocutory injunction ought not have extra-territorial effect.   (Google did not challenge the court’s jurisdiction over Google).  Again, it is well-settled law that courts can issue injunctions with international effects.  World-wide Mareva injunctions have been available for many years.   

Google also argued that the injunction could restrict freedom of expression and might violate laws of other countries. This is likely the aspect of the case that drew the most attention from observers.   But again, this appeal did not really engage any momentous human rights issue.  The expression in question was the marketing of pirated products.   Never has the S.C.C. accepted that “freedom of expression requires the facilitation of the unlawful sale of goods” (para 48).  Further, Google provided no evidence that the injunction has or will violate foreign laws.     Google’s concerns were, in the Court’s words, merely “theoretical”.   Google acknowledged “most countries will likely recognize intellectual property rights and view the selling of pirated products as a legal wrong” (para 44).  

Even so, there is a real issue as to whether the Google injunction would be enforced around the world.  Many countries do not enforce foreign non-monetary judgments of any kind, even if they do not affect fundamental freedoms such as freedom of expression. Oddly, the Court’s reasons say nothing about whether the injunction could be enforced abroad.  Courts have sometimes declined to issue injunctions with international effect in circumstances where there were little or no prospect of enforcement.     Let’s hope this ruling can be taken to mean that enforceability need not be a factor in deciding whether to issue it.   If someone pursues an injunction, even in the face of limited prospects for enforcement, the injunction is probably important to him.  What harm is there in granting it?  
In part two of this post, I will address the dissent’s very conservative stance regarding interlocutory injunctions.