Almost exactly a year ago we wrote about a troubling lawsuit in British Columbia, where a court ruled that Google needed to block access to a website globally. The case involved one company accusing another of selling counterfeit or copied equipment, and despite Google not even being a party to the case, said that Google needed to make sure no one could find the site in question via Google anywhere in the world. As we noted, this had tremendously problematic consequences. For example, China doesn’t think anyone should be able to learn about the protests in Tiananmen Square. Can it now order Google to remove all links to such references globally? That result seems crazy. And, of course, there was a separate issue of how the court even had jurisdiction over Google, seeing as it does not have any operations, staff or servers in British Columbia. Google stepped in to protest the injunction at the appeals court.
Unfortunately, the court has now ruled against Google, using the same sort of logic the lower court did — basically arguing that because Google is available in British Columbia, the court has jurisdiction, and because it’s trying to stop what it deems to be illegal actions from reaching Canada’s shores, it has every right to order Google to block things worldwide, lest someone from British Columbia decide to type “google.com” into their browser to avoid the “google.ca.” On the question of “doing business” in BC, the appeals court basically accepts the lower court’s confused understanding of things:
While Google does not have servers or offices in the Province and does not have resident staff here, I agree with the chambers judge’s conclusion that key parts of Google’s business are carried on here. The judge concentrated on the advertising aspects of Google’s business in making her findings. In my view, it can also be said that the gathering of information through proprietary web crawler software (“Googlebot”) takes place in British Columbia. This active process of obtaining data that resides in the Province or is the property of individuals in British Columbia is a key part of Google’s business.
Google says that even if it is concluded that it carries on business in British Columbia, the injunction was not properly granted, because it did not relate to the specific business activities that Google carries on in the Province. In my view, the business carried on in British Columbia is an integral part of Google’s overall operations. Its success as a search engine depends on collecting data from websites throughout the world (including British Columbia) and providing search results (accompanied by targeted advertising) throughout the world (including British Columbia). The business conducted in British Columbia, in short, is the same business as is targeted by the injunction.
In other words, if you don’t want to be subject to the laws of BC (with control over your entire global operations) don’t index websites based in BC? That’s crazy. While I doubt it will happen, it’s got to be tempting for some at Google to just say “okay, no more Google for BC or any website in BC.”
Now as for the nutty idea that a court in BC has jurisdiction over all of Google’s global operations, again, the court doesn’t seem even remotely concerned about that. It’s response is basically “yeah, so?”
Google raises the specter of it being subjected to restrictive orders from courts in all parts of the world, each concerned with its own domestic law. I agree with the chambers judge that it is the world-wide nature of Google’s business and not any defect in the law that gives rise to that possibility. As well, however, the threat of multi-jurisdictional control over Google’s operations is, in my opinion, overstated. Courts must, in exercising their powers, consider many factors other than territorial competence and the existence of in personam jurisdiction over the parties. Courts must exercise considerable restraint in granting remedies that have international ramifications.
And it notes that previous cases have said that, sure, BC courts have “worldwide jurisdiction.”
At one time the courts of this Province refrained from granting injunctions that enjoined activities outside of British Columbia…. In 1988, however, the English Court of Appeal held that it had jurisdiction to issue a worldwide Mareva injunction…. It is now over 25 years since the Supreme Court of British Columbia first issued a worldwide injunction…. The jurisdiction to do so was re-confirmed …. and is, today, well-established.
Google, quite reasonably, points out that while injunctions make sense against parties that actually break the law, it makes no sense to issue an injunction against a third party that has nothing to do with the party that actually broke the law. The court goes on a long and winding road saying “sure, but… in this case, it’s okay.”
Finally, the court addresses another concern raised by the Canadian Civil Liberties Association, noting that banning access to a website worldwide has serious free speech consequences. Once again, the court says “sure, but, we don’t care in this case.”
For that reason, courts should be very cautious in making orders that might place limits on expression in another country. Where there is a realistic possibility that an order with extraterritorial effect may offend another state’s core values, the order should not be made.
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.
I note, as well, that 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.
In short, sure, banning speech around the globe from one court in British Columbia, Canada could have serious global free speech concerns, but… we really don’t like this website, so we’re not going to change the ruling. In fact, later in the ruling, the court basically says “hey, the idea that there may be some ‘legitimate’ speech on this website we’re ordering blocked globally is totally speculative”:
There has, in the course of argument, been some reference to the possibility that the defendants (or others) might wish to use their websites for legitimate free speech, rather than for unlawfully marketing the GW1000. That possibility, it seems to me, is entirely speculative. There is no evidence that the websites in question have ever been used for lawful purposes, nor is there any reason to believe that the domain names are in any way uniquely suitable for any sort of expression other than the marketing of the illegal product. Of course, if the character of the websites changes, it is always open to the defendants or others to seek a variation of the injunction.
And, thus, British Columbia believes it can order global blocking of any website its courts deem problematic in BC. One wonders if we’ll start to see “censorship tourism” migrating to BC courts now that its doors are open for global censorship orders.