Law Times

Law Times • January 11, 2016 Page 7 www.lawtimesnews.com Freedom of expression and Google injunctions BY DAVID POTTS I n 2015, the British Columbia Supreme Court and the B.C. Court of Appeal released two interesting decisions both involving interlocutory injunctions seeking extraterritorial application against Google, which was a non-party in both cases. In June 2015, the BCCA in Equustek Solutions Inc. v. Google Inc. dismissed an appeal by Google Inc. from an in - terlocutory injunction prohibiting it from including specific web sites in results delivered by its search engines. On June 16, 2015, the B.C. Supreme Court in Niemela v. Malamas dismissed an application for an interlocutory injunction compelling Google Inc. to block from its global search results 146 universal resource locators (URLs) for web sites containing "clearly defamatory" comments about Niemela. While numerous important issues were raised in both cas - es, I will focus on both courts' recognition of — and concern for — the impact of its decisions on freedom of expression. In Equustek, Justice Harvey Groberman held "the impor- tance of freedom of expression should not be underestimated. As the Canadian Civil Liberties Association has said in its fac- tum: ' A nation's treatment of freedom of expression is a core part of its self-determination, rooted in the nation's historical and social context, and the ways in which its constitutional values (whether written or unwritten), norms and legal sys - tem have evolved.' "For that reason, courts should be very cautious in making orders that might place limits on expression in another coun- try. Where there is a realistic possibility that an order with ex- traterritorial effect may offend another state's core values, the order should not be made," continued Justice Groberman. "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 intel - lectual property rights of the plaintiffs offends the core val- ues of any nation. e order made against Google is a very limited ancillary order designed to ensure that the plaintiffs' core rights are respected," he added. "I note that the courts of many other jurisdictions have found it necessary, in the context of orders against Internet abuses, to pronounce orders that have international effects." e BCCA adopted the well-established test for the granting of an interlocutory injunction set out in R.J.R- Macdonald Inc. v. Canada (Attorney General). e appli - cant must demonstrate that there is a serious question to be tried, that it will suffer irreparable harm if the injunction is not granted, and that the balance of convenience favours the granting of the injunction. is test is very different from the test that is applied in libel actions, which is much more protective of freedom of speech. In Equustek, the court held that "the real issue in this case is one of balance of convenience. In addition to balancing the interests of Google and of the plaintiffs, there are important public interests that must be taken into account in this case. "e chambers judge carefully examined the evidence, and found that the injunction would not inconvenience Google in any material way, and that Google would not incur expense in complying with it. She also found that the granting of the injunction was the only practical way for the defendants' web sites to be made inaccessible," said Justice Groberman. "Among the important issues of public interest are the importance of avoiding unnecessarily embroiling non- parties in litigation, the importance of avoiding unneces - sary orders with extraterritorial effect, and freedom of ex- pression. As I am of the view that the chambers judge dealt adequately with each of these issues, I propose to say little about them," he continued. Observations about the decision First, without this order, the plaintiffs would have been with- out a remedy to cure an obvious wrong. Second, the plaintiffs had taken every possible step against the defendants without any possible success. ird, Google had the ability to remedy this wrong. e defendants were using the platform designed, operated, and promoted by Google. is platform generated billions of dollars of revenue for Google. Fourth, the plaintiffs were not asking for damages. ey simply wanted the tortuous conduct of the defendants being exercised on Google's platform to be stopped. Fih, to put it as politely as possible, it would appear to accede to Google's argument; it would allow form to prevail over substance. Google has a global business empire, with global operations, generating global revenues, yet it seeks to insulate itself from the orders of the B.C. Supreme Court by claiming that its operations are con - ducted in a hermetically sealed jurisdictional silo in Moun- tain View, Calif. Google has enjoyed enormous financial rewards operating in the borderless world of cyberspace. Yet, Google in this case seeks to insulate itself from not li- ability but merely compliance from an order of the British Columbia Supreme Court by seeking to rely upon national jurisdictional silos. ese national jurisdictional silos are largely based on the concept of the primacy of the nation state, which has its genesis in the Treaty of Westphalia in 1648 progressing or regressing to its sanguinary apogee or nadir in the mid 20th century. e Internet, while clearly not destroying the nation state jurisdictional concept, has nudged and prodded us for good and ill toward a border - less world in, for example, commerce, communications, and cyber libel. In the second case, Niemela v. Malamas, the plaintiff, a Vancouver lawyer, had been the victim of a campaign of vil - ification, harassing telephone calls, and extortion attempts since September 2012. Defamatory postings concerning Niemela were placed on two Internet sites. Justice Lauri Ann Fenlon dismissed the application for an interlocutory injunction. She found "there is insufficient evidence of irrep - arable harm to Mr. Niemela if the injunction is not granted." e court added that it was "reluctant to make an order that cannot be complied with. Mr. Niemela acknowledges that Google is not able to comply with an order compelling it to block defamatory search results in the United States." because of federal laws protecting Internet providers such as Google and the First Amendment right to free speech. "While United States courts will generally recognize and enforce foreign judgments, they will not do so if en - forcement of the foreign court's order would violate the corporation's constitutional rights to free speech…." Justice Fenlon added. These decisions illustrate the importance of freedom of expression to the British Columbia Courts when faced with interlocutory injunctions. LT uDavid Potts is a Toronto defamation lawyer, the co-author of Canadian Libel Practice and Canadian Libel and Slander Actions, and author of Cyberlibel: Information Warfare in the 21st Century and a revised version called Potts on Cyberlibel. COMMENT u SPEAKER'S CORNER Perceived conflict is 'worrisome' Tarion home warranty review is long overdue W riting this social justice column has few benefits. Feedback from colleagues and the public is minimal. Receiving two or three e-mails telling me why my ideas are unworkable or wrong is typical for a column. Few lawyers agree with me and when they do they don't want me to use their names. But last March I touched a nerve. I wrote a column about Tarion, the private, non-profit corporation empowered to administer and enforce the Ontario New Home Warranties Plan Act. I watched in bemusement as 63 comments were posted online, including one from a sitting MPP and another from a former MPP. I argued that Tarion ought to be made more transparent and accountable. It wasn't a controversial topic — or so I thought. Who wouldn't want more transparency and accountability for a body tasked with administering a statutory duty? My column sparked a rebuttal column from the chairman of Tarion's board of directors in an April edition of Law Times. at column praised Tarion and the way it "efficiently manages its financial affairs." Clearly, the rebuttal column did not assuage Tarion's critics as the column attracted 33 negative and no positive comments. Fast-forward to Nov. 5, 2015 when David Orazietti, the minister of Govern- ment and Consumer Services, announced the appointment of the former associate justice of the Ontario Superior Court of Justice, J. Douglas Cunning- ham, as a special advisor to conduct a public, independent review of the Ontario New Home Warranties Plan Act and the Tarion Warranty Corpora- tion. e review is said to pro- vide recommendations on how to improve consumer protec- tion, accountability, transpar- ency, and board governance. I am not naive enough to believe that my March column precipitated this review. Opposition members of the legislature have called for an independent review of Tarion for several years. Based on poor consumer satisfaction levels and com- plaints made to the office of the Ontario Ombudsman (these complaints were filed in the absence of any mandate to receive or investigate complaints concerning Tar- ion), this review is long overdue. However, almost immediately aer an- nouncing the review, Orazietti made an unfortunate comment. He was quoted in a Toronto Star article as stating: "I anticipate that Justice Cunningham will find Tarion's processes validated as good consumer protection measures." According to Canadians For Properly Built Homes, a consumer ad- vocacy group that has advo- cated reform of Tarion for some time, Orazietti's com- ment has undermined the credibility of the review. Sure- ly, the minister should have refrained from publicly re- leasing his preconceived views concerning the review. Orazietti's comment is also troubling in its focus on Tari- on's processes. Purchasers of new homes are not interested in processes as much as they are interested in results. ey aren't so much interested in enhancements to warranty coverage — as trumpeted in the ministry's announce- ment of the review — as they are in having their warranties enforced. en there's the problem of Tarion's dual role: overseeing new-home warranty cov- erage and licensing builders. ere seems to be an inherent conflict in these two roles, particularly given the makeup of Tarion's board with seven of 15 current directors representing builders or developers. is conflict is worrisome every time Tarion denies a homeowner's claim in favour of a builder. e appearance of a conflict is exacerbated when homeown- ers, oen self-represented, appeal to the Licence Appeal Tribunal and face legal representation from both Tarion and the builder. Surely, homeowners should not have to face two sets of counsel. Of course, problems with Tarion would be of lesser concern if it were not a mo- nopoly provider of a mandatory purchase warranty. New-home buyers have no op- tion but to deal with Tarion. Whether Tar- ion ought to enjoy a monopoly — other provinces have multiple sources of new- home warranties — should be open for review along with whether the new-home warranty ought to be optional. As well, the review should consider the wisdom of the province contracting out enforcement of new-home warranty legislation. Contracting out government services to a private body isn't necessarily a wise approach. Having contracted out this service, the Ontario government has shielded Tarion from oversight by the Ontario Ombuds- man and the Office of the Auditor General of Ontario. As well, Tarion is not subject to sunshine and access to information laws. The status quo isn't acceptable to new- home purchasers. Let's hope this review results in meaningful reform. LT uAlan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a free- lance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com. Social Justice Alan Shanoff

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