Law Times

Law Times • June 22, 2015 Page 3 www.lawtimesnews.com b.C. ruling on jurisdiction over google 'disastrous' By Julius MelniTzer For Law Times n the most expansive deci- sion in the common law world to date, the B.C. Court of Ap- peal has upheld an order re- quiring Google Inc., a foreign en- tity that's not a named defendant in the main proceedings, to re- move a company's web sites from all of its worldwide search results. The case sends a clear mes- sage that Canadian courts are increasingly willing to ignore provincial and national borders in order to uphold justice in the business world. "The long arm of Canadian law has certainly become much longer," says Scott MacKendrick of Bereskin & Parr LLP in To- ronto. But not everyone's happy about it. "The decision is disastrous, although it's in line with other Canadian decisions that have seized jurisdiction over entities operating in Canada and tried to regulate not only what these en- tities can do in Canada but also in the rest of the world," says Ren Bucholz of Lenczner Slaght Royce Smith Griffin LLP in Toronto. "I don't think the court has thought through the implications for Ca- nadian business abroad or for the way other countries will regulate what Canadians can do here." Bucholz' concern is the ap- peal court took jurisdiction over Google even though the compa- ny's singular connection to the province was that it indexed Ca- nadian web sites and advertised in British Columbia. "If that's the standard for juris- diction, then go ahead and declare what Google can do elsewhere on the planet," he says. "But while we might trust three Canadian ap- pellate judges to make the right decision about a given issue, what are we going to when courts in other countries with different standards start to apply local stan- dards to global conduct, includ- ing conduct in Canada?" According to Bucholz, there's nothing in Equustek Solutions Inc. v. Google Inc. that distin- guishes the principles enunci- ated from analogous decisions emanating from other countries whose laws and norms don't conform to Canadian law or standards. "What happens when an Egyp- tian court decides that certain Google content is not acceptable and orders Google to scrub that material from its global index?" he asks. "Issues like that highlight the need for a principled debate as to the extent to which local decisions should be allowed to hamstring the global Internet." The case arose when Equustek, a company that manu- factures computer-networking devices, claimed the named de- fendant had stolen trade secrets while working for the company and then used them to develop and sell its own products online. The defendants had f lagrantly disobeyed various court orders, including one prohibiting them from doing business online. Pre- viously, Google had complied with Equustek's request to remove links to the defendants' web sites from google.ca but refused to do the same for searches originating from other Google web sites. Equustek asked the court for an interim injunction prohibiting Google from displaying the de- fendants' web sites in any search results. Google resisted the appli- cation, arguing the court didn't have jurisdiction over it as it isn't a B.C. company and the injunction sought didn't relate to its activities in British Columbia or Canada. But both the lower court judge and the Court of Appeal concluded Google was carry- ing on business in the province because it sold advertising to B.C. clients, an activity inextri- cably linked to its search engine. The ad revenue also paid for the search engine's operation. The upshot was that the B.C. courts had territorial jurisdiction over Google. That was enough to justify a global order. "Once it is accepted that a court has in personam jurisdic- tion over a person, the fact that its order may affect activities in other jurisdictions is not a bar to it mak- ing an order," the motions judge concluded, a view accepted by a unanimous appeal court. The decision has many im- plications. "The impact will be significant for cases involving everything from e-commerce to misuse of confidential informa- tion and defamation," says Mark Fancourt-Smith of Lawson Lun- dell LLP in Vancouver. "And there will only be more to come." If a right to be forgotten, for example, crystallized in Canada, the beneficiaries of it could con- ceivably obtain extraterritorial orders from the Canadian courts to delete references worldwide. That, of course, would make any order far more effective from a practical standpoint. Indeed, in finding the court had territorial jurisdiction over Google, the motions court judge referred to the recent Eu- ropean Court of Justice decision in the case about the right to be forgotten. While the appeal court didn't address her specific observations on the decision, it did refer to the ruling itself. "I note that the courts of many other jurisdictions have found it necessary, in the con- text of orders against Internet abuses, to pronounce orders that have international effects," the Court of Appeal stated, go- ing on to list a number of cases from around the world, includ- ing the European ruling. What's clear then, is that the delicate balancing act in decid- ing these types of cases repre- sents a global conundrum. "Courts everywhere will have to come to terms with how to balance the rights of an inno- cent foreign non-party with the need to enforce its process and authority in the face of brazen contempt and to what extent search-engine providers may be pressed into service to enforce court orders against others," says Fancourt-Smith. LT NEWS MATTER CREDENTIALS TORONTO I BARRIE I HAMILTON I KITCHENER 1-866-685-3311 I www.mcleishorlando.com A Noticeable Difference ™ Choosing a personal injury lawyer is one of the most important decisions an injured person will make. Help your client ask the right questions: Is the lawyer? Untitled-4 1 2015-02-17 10:59 AM 'I don't think the court has thought through the implications for Canadian business abroad or for the way other countries will regulate what Canadians can do here,' says Ren Bucholz. I

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