2017 June 28

Google Inc. v. Equustek Solutions Inc, 2017 SCC 34

In this intellectual property case, the Supreme Court of Canada dismissed an appeal from lower court orders granting the plaintiff an interlocutory injunction requiring Google “pending a trial, to globally de-index the websites of a company which, in breach of several court orders, was using those websites to unlawfully sell the intellectual property of another company.”    The Court rejected the argument that non-parties cannot be the subject of an interlocutory injunction, citing MacMillan Bloedel Ltd. v Simpson, [1996] 2 SCR 1048, which held that non-parties are bound by injunctions and are subject to conviction and punishment for contempt of court if they violate them.  “The courts have jurisdiction to grant interim injunctions which all people, on pain of contempt, must obey.”  The Supreme Court of Canada noted that Norwich disclosure orders are analogous and may be ordered against non-parties who are not themselves guilty of wrongdoing, but who are so involved in the wrongful acts of others that they facilitate the harm. “This approach was applied in [Cartier International AG v British Sky Broadcasting Ltd., [2017], 1 All. E.R. 700 (C.A.), at para. 53] where the Court of Appeal of England and Wales held that injunctive relief could be awarded against five non-party internet service providers who had not engaged in, and were  not accused of any wrongful act.  The internet service providers were ordered to block the ability of their customers to access certain websites in order to avoid facilitating infringements of the plaintiff’s trademarks.”

The Supreme Court of Canada also rejected Google’s argument that an interlocutory injunction with extraterritorial effect is improper; i.e. that any injunction issued should be limited to Canada or google.ca.  “When a court has in personam jurisdiction, and where it is necessary to ensure the injunction’s effectiveness, it can grant an injunction restraining that person’s conduct anywhere in the world.”  “The problem in this case is occurring online and globally.  The internet has no borders – its natural habitat is global.  The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates – globally.” “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 injunction accordingly.”