2015 June 16

Niemela v. Malamas, 2015 BCSC 1024

The British Columbia Supreme Court granted an application by Google, Inc. for summary judgment dismissing defamation claims based on Google’s publication of search results and “snippets” which contained defamatory statements about the plaintiff. The Court stated that Google “is not aware of the snippets and hyperlinks produced, nor can it be, realistically.” “Google does not authorize the appearance of the snippets on the user’s screen ‘in any meaningful sense’ but ‘has merely, by the provision of its search service, played the role of a facilitator.’ ” The Court therefore concluded that Google is a passive instrument and not the publisher of snippets. However, the Court emphasized that the plaintiff had “not asked [the Court] in this case to consider whether Google could be a publisher of snippets and search results after notice of defamatory content.”

Further, in the course of dismissing the plaintiff’s application for an interlocutory injunction requiring Google to block search results for 146 websites worldwide, the Court noted that the plaintiff had not satisfied the requisite legal tests. There was insufficient evidence of irreparable harm to the plaintiff if the injunction was not granted. Google had voluntarily removed URLs identified by the plaintiff from Google.ca search results, thereby preventing searchers in Canada from finding the links to the offending websites. Additionally, the plaintiff had waited two years to apply for the interlocutory injunction, which weighed against any sudden urgency to grant an interlocutory injunction ahead of the injunction to be sought at trial. “Finally, the Court is reluctant to make an order that cannot be complied with. [The plaintiff] acknowledges that Google is not able to comply with an order compelling it to block defamatory search results in the United States. Two federal statutes, the Communications Decency Act of 1996, 47 USC (1996), and the Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act, 28 USC (2010), protect Internet providers such as Google and block enforcement orders that would infringe on the First Amendment right to free speech.” “While United States courts will generally recognize and enforce foreign judgments, they will not do so if enforcement of the foreign court’s order would violate the corporation’s constitutional rights to free speech: Yahoo! Inc. v La Ligue Contre Le Rascisme et L’Antisemitisme, 169 F Supp 2d 1181 (ND Cal 2001) at 1192-1193, rev’d on other grounds 379 F 3d 1120 (9th Cir 2004).“