The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A few weeks ago I commented on a rather troubling case out of British Columbia, where a court ordered Google to remove links pointing to a trademark-infringement defendant's Web site from the search results displayed on any Google server worldwide—troubling not just because it seems to extend the jurisdiction of the BC court far beyond the borders of BC (or Canada, or the Western hemisphere, for that matter), but also because Google was not a party to the underlying litigation (and thus, among other things, had no notice of the underlying claim nor any ability to defend itself against the motion for the injunction). I suggested (partly tongue-in-cheek) that we'd be seeing more "censorship tourism" in British Columbia if the decision held up— combining a nice vacation in beautiful Vancouver while also getting a court to issue you a worldwide injunction against Google listings for sites against which you might have some sort of a claim.
So along comes Niemela v. Malamas, before the same court:
The plaintiff, Glenn Niemela, seeks an interlocutory injunction compelling Google Inc. ("Google") to block from its global search results 146 universal resource locators ("URLs") for websites containing defamatory comments about Mr. Niemela. … Mr. Niemela is a Vancouver lawyer. He has been the victim of a campaign of vilification, harassing telephone calls, and extortion attempts since September 2012. In October 2012 and in March 2013, postings concerning Mr. Niemela were placed on two Internet sites: www.ripoffreport.com ("Ripoffreport") and www.reviewstalk.com ("Reviewstalk"). The postings contain statements about Mr. Niemela and his conduct as a lawyer that are clearly defamatory. Mr. Niemela attributes at least some of this conduct to a former client, the defendant Strato Malamas, who he now believes to be an associate of the Hells Angels …
The court this time rejects the attempt—though on narrow grounds and without really coming to grips with the extraterritoriality problem. Apparently, the availability of these third-party injunctions differ, under Canadian law, depending on the nature of the underlying claim—and getting such injunctions in defamation cases is harder than in other cases. In a defamation case, a plaintiff seeking such an injunction must show (a) that he will suffer irreparable harm if the injunction is not granted, and that (b) his claim raises not merely "a serious question to be tried" (as is ordinarily the case) but that his is "the clearest of cases," where "the words complained of are so manifestly defamatory that any jury verdict to the contrary would be considered perverse by the Court of Appeal."
And this, the court says, Niemela wasn't able to do. Even if he could surmount the "manifestly defamatory" standard (about which the court seems dubious, though it doesn't rule on that), there was no irreparable harm from the continued display of the search results; Google had already removed the links (at Niemela's request) from its Google.ca search results, and Niemela couldn't demonstrate that the continued display of these links elsewhere around the world caused him any demonstrable harm.
One nod in the opinion to the 800-pound extraterritorial jurisdictional gorilla sleeping in the corner:
Finally, the Court is 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. Two federal statutes, the Communications Decency Act of 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 Racisme 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).
Not strictly correct - first off, no federal statute makes Google unable to comply with an order compelling it to block defamatory search results; the statutes cited just mean that a U.S. court can't issue such an order, not that Google can't comply with it if ordered by someone else. And second, neither of those statutes "block enforcement orders that would infringe on the First Amendment" - the First Amendment itself blocks such orders, not any subsidiary statute.
But that's all neither here nor there in the end. We'll just have to wait for a different case to see the directions that the BC court (or other Canadian courts) will take on the extraterritoriality question.