A recent decision of the Supreme Court of Canada regarding the Internet giant, Google, has delivered some very important lessons for future litigants in the field of cyber-speech. In Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, the Court has delivered two two principal lessons:

1. If you are going to allege constitutional values or arguments, such as the importance of freedom of expression, ensure that you develop a full evidentiary record in support of your position;

2. The Court may well understand that there is a distinction between those who provide technology such as search engines and those who use it for the purposes of breaking the law.

The facts of the case can be summarized by reproducing the first three paragraphs of the Court-approved headnote:

E is a small technology company in British Columbia that launched an action against D. E claimed that D, while acting as a distributor of E’s products, began to re label one of the products and pass it off as its own. D also acquired confidential information and trade secrets belonging to E, using them to design and manufacture a competing product. D filed statements of defence disputing E’s claims, but eventually abandoned the proceedings and left the province. Some of D’s statements of defence were subsequently struck.

Despite court orders prohibiting the sale of inventory and the use of E’s intellectual property, D continues to carry on its business from an unknown location, selling its impugned product on its websites to customers all over the world. E approached Google and requested that it de index D’s websites. Google refused. E then brought court proceedings, seeking an order requiring Google to do so. Google asked E to obtain a court order prohibiting D from carrying on business on the Internet saying it would comply with such an order by removing specific webpages.

An injunction was issued by the Supreme Court of British Columbia ordering D to cease operating or carrying on business through any website. Between December 2012 and January 2013, Google advised E that it had de indexed 345 specific webpages associated with D. It did not, however, de index all of D’s websites. De indexing webpages but not entire websites proved to be ineffective since D simply moved the objectionable content to new pages within its websites, circumventing the court orders. Moreover, Google had limited the de indexing to searches conducted on google.ca. E therefore obtained an interlocutory injunction to enjoin Google from displaying any part of D’s websites on any of its search results worldwide. The Court of Appeal for British Columbia dismissed Google’s appeal.

So to the first lesson: if you argue constitutional values, then provide a solid evidentiary footing.

The Court was split 7:2 on this matter. The majority’s reasons were authored by Abella J (McLachlin CJC, Moldaver, Karakatsanis, Wagner, Gascon and Brown, JJ concurring) (Côté and Rowe JJ dissenting). Abella J noted that Google had argued amongst other things that, given that the issuance of an injunction is a discretionary matter, when considering all of the various factors, consideration for freedom of expression should have militated in favour of refusing the world-wide injunction. Justice Abella agreed with the trial judge, Madam Justice Fenlon of the British Columbia Court of Appeal and with Mr. Justice Groberman of the British Columbia Court of Appeal and found that the interests of freedom of expression did not operate in this case to prevent the issuance of a world-wide injunction. One of the important factors mentioned by Justice Abella was that Google had not provided an evidentiary foundation respecting why this interference with its freedom of expression would be harmful (paras. 45-49):

[45] 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. As Groberman J.A. concluded:

In the case before us, there is no realistic assertion that the judge’s order will offend the sensibilities of any other nation. It has not been suggested that the order prohibiting the defendants from advertising wares that violate the intellectual property rights of the plaintiffs offends the core values of any nation. The order made against Google is a very limited ancillary order designed to ensure that the plaintiffs’ core rights are respected.

. . . the order in this case is an interlocutory one, and one that can be varied by the court. In the unlikely event that any jurisdiction finds the order offensive to its core values, an application could be made to the court to modify the order so as to avoid the problem.

[46] If Google has evidence that complying with such an injunction would require it to violate the laws of another jurisdiction, including interfering with freedom of expression, it is always free to apply to the British Columbia courts to vary the interlocutory order accordingly. To date, Google has made no such application.

[47] In the absence of an evidentiary foundation, and given Google’s right to seek a rectifying order, it hardly seems equitable to deny Equustek the extraterritorial scope it needs to make the remedy effective, or even to put the onus on it to demonstrate, country by country, where such an order is legally permissible. We are dealing with the Internet after all, and the balance of convenience test has to take full account of its inevitable extraterritorial reach when injunctive relief is being sought against an entity like Google.

[48] This is not an order to remove speech that, on its face, engages freedom of expression values, it is an order to de-index websites that are in violation of several court orders. We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.

[49] And I have trouble seeing how this interferes with what Google refers to as its content neutral character. The injunction does not require Google to monitor content on the Internet, nor is it a finding of any sort of liability against Google for facilitating access to the impugned websites. As for the balance of convenience, the only obligation the interlocutory injunction creates is for Google to de-index the Datalink websites. The order is, as Fenlon J. observed, “only a slight expansion on the removal of individual URLs, which Google agreed to do voluntarily”. Even if it could be said that the injunction engages freedom of expression issues, this is far outweighed by the need to prevent the irreparable harm that would result from Google’s facilitating Datalink’s breach of court orders.

[Emphasis added; footnotes removed]

In a previous post, I have mentioned the critical importance of ensuring that there is a full record for any constitutional rights determination. The Court needs to understand fully the nature of the right or freedom in question, how it is being exercised, how the order it is being requested to make may affect the exercise of that right or freedom. In a case involving freedom of expression, especially in relation to what I will term loosely as cyber-speech, it must understand the technology in question. It must be shown how the technology operates and how the order may interfere with the function of that technology. I do not know whether this sort of evidence was available to the Court but Abella J seemed to indicate that an “evidentiary foundation” was lacking.

The second lesson: the Court may be willing to differentiate between the providers of technology and the users of that technology in assessing liability – but only so far. In her concluding comments respecting why Google, a non-party, could be the subject of a world-wide injunction, Abella J notes that Google is not liable for the infringing actions of the defendants:

[52] Datalink and its representatives have ignored all previous court orders made against them, have left British Columbia, and continue to operate their business from unknown locations outside Canada. Equustek has made efforts to locate Datalink with limited success. Datalink is only able to survive — at the expense of Equustek’s survival — on Google’s search engine which directs potential customers to its websites. In other words, Google is how Datalink has been able to continue harming Equustek in defiance of several court orders.

[53] This does not make Google liable for this harm. It does, however, make Google the determinative player in allowing the harm to occur. On balance, therefore, since 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.

[Emphasis added]

The highlighted comment underscores the concept that merely providing the technology that is part of the engine of freedom of expression does not necessarily make you responsible for its use. But the Court seems to be saying that if you are going to be providing that technology, you may be called upon by the courts to control its use. This may have significant ramifications for the development of cyber-technology now and in the future as developers not only conceive new tools but means of controlling their use. I close in asking: are we asking for an Orwellian future by requiring such controls be imposed on our future means of communication and sharing of information?

I remain

Constitutionally your,

Arthur Grant

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