Wednesday, June 28, 2017

Google Suffers Severe Setback from the Supreme Court of Canada

Google lost today in the Supreme Court of Canada (“SCC”), which held that a trial judge in British Columbia can, on an interlocutory motion, order Google world-wide to de-index sites alleging violating IP law in BC. As the minority points out, this is effectively a permanent injunction and a permanent remedy for all practical purposes.

Watching the webcast of the hearing helps to explain what went so wrong here. It becomes apparent early on.

The best argument apparently wasn’t sufficiently emphasized – namely that this was an IP case and the IP rights in issue, namely trademark and trade secrets were tenuous at best and unestablished outside of Canada and that TM and trade secrecy law differ dramatically outside of Canada and from country to country.

Curiously enough, INTA of all folks was ready to ably make and focus on those arguments – but the Court refused to hear from them as interveners and heard, instead, from the record and film industries.

This is going to create a lot of problems. I don’t see how this is consistent with the SCC’s 2011 decision in Crookes v. Newton, which held that merely linking to a defamatory site is not defamation. Google made that point, but perhaps it wasn’t sufficiently emphasized. It didn’t find its way into the judgment.

I can just see the RIAA and MPAA salivating at the thought of getting world-wide injunctions against Google at an interlocutory hearing from a trial judge in British Columbia. Will the mere fact that copyright subsists in BC - as it does virtually everywhere - be sufficient to get the injunction? One can imagine that few if any defendants would appear in such proceedings.

At least, we have competent trial judges in Canada and the rule of law. However, if other countries become emboldened in this way, perhaps worldwide injunctions against Google will emanate from unsavoury jurisdictions at little cost and with little justice.


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