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Equustek talk

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  1. 1. The Equustek Effect: A Canadian Perspective on Global Takedown Orders in the Age of the Internet May 15, 2019 professor michael geist university of ottawa, faculty of law
  2. 2. Internet Jurisdiction
  3. 3. “Borderless Internet”
  4. 4. Technical vs. Legal
  5. 5. Courts
  6. 6. Incoming Jurisdiction
  7. 7. Outgoing Jurisdiction
  8. 8. Facts • Trade secrets used by former employee • Competing products sold online through competing company (Datalink) • Efforts to remove offending sites unsuccessful • Seek court order to remove sites from search results
  9. 9. BCSC - 2014 Google argues that the Court should not make an order that could affect searches worldwide because it would put Google in the impossible situation of being ordered to do something that could require it to contravene a law in another jurisdiction. This raises the concern addressed by the Baltic proviso in Mareva injunctions. Google gives as an example of such jurisdictional difficulties the case of Yahoo! Inc. v. La Ligue Contre Le Racism et L’Antisemitisme [Yahoo]…
  10. 10. BCSC - 2014 In the present case, Google is before this Court and does not suggest that an order requiring it to block the defendants’ websites would offend California law, or indeed the law of any state or country from which a search could be conducted. Google acknowledges that most countries will likely recognize intellectual property rights and view the selling of pirated products as a legal wrong
  11. 11. BCSC - 2014 The Court must adapt to the reality of e-commerce with its potential for abuse by those who would take the property of others and sell it through the borderless electronic web of the internet. I conclude that an interim injunction should be granted compelling Google to block the defendants’ websites from Google’s search results worldwide. That order is necessary to preserve the Court’s process and to ensure that the defendants cannot continue to flout the Court’s orders.
  12. 12. BCCA - 2015 With respect to extraterritorial effects, Google has, in this Court, suggested that a more limited order ought to have been made, affecting only searches that take place on the site. I accept that an order with international scope should not be made lightly, and that where an order with only domestic consequences will accomplish all that is necessary, a more expansive order should not be made.
  13. 13. SCC - 2017 The issue in this appeal is whether Google can be ordered, pending a trial, to globally de-index the websites of a company which, in breach of several court orders, is using those websites to unlawfully sell the intellectual property of another company
  14. 14. SCC - 2017 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…There is no equity in ordering an interlocutory injunction which has no realistic prospect of preventing irreparable harm
  15. 15. SCC - 2017 In the absence of an evidentiary foundation, and given Google’s right to seek a rectifying order, it hardly seems equitable to deny Equustek the extraterritorial scope it needs to make the remedy effective, or even to put the onus on it to demonstrate, country by country, where such an order is legally permissible. We are dealing with the Internet after all, and the balance of convenience test has to take full account of its inevitable extraterritorial reach when injunctive relief is being sought against an entity like Google
  16. 16. SCC - 2017 I have trouble seeing how this interferes with what Google refers to as its content neutral character. The injunction does not require Google to monitor content on the Internet, nor is it a finding of any sort of liability against Google for facilitating access to the impugned websites. As for the balance of convenience, the only obligation the interlocutory injunction creates is for Google to de-index the Datalink websites. The order is, as Fenlon J. observed, “only a slight expansion on the removal of individual URLs, which Google agreed to do voluntarily”. Even if it could be said that the injunction engages freedom of expression issues, this is far outweighed by the need to prevent the irreparable harm that would result from Google’s facilitating Datalink’s breach of court orders.
  17. 17. SCC – 2017 (Dissent) As Google points out, Datalink’s websites can be found using other search engines, links from other sites, bookmarks, email, social media, printed material, word-of-mouth, or other indirect means. Datalink’s websites are open for business on the Internet whether Google searches list them or not. In our view, this lack of effectiveness suggests restraint in granting the Google Order
  18. 18. After Equustek
  19. 19. Canada a home for global takedown orders?
  20. 20. Conflicting Court Orders
  21. 21. ND Cal – 2017 Google argues: the Canadian order is ‘unenforceable in the United States because it directly conflicts with the First Amendment, disregards the Communication Decency Act’s immunity for interactive service providers, and violates principles of international comity
  22. 22. BCSC – 2018 The effect of the U.S. order is that no action can be taken against Google to enforce the injunction in U.S. courts. That does not restrict the ability of this Court to protect the integrity of its own process through orders directed to parties over whom it has personal jurisdiction
  23. 23. Expanding Equustek
  24. 24. Globe24h – 2017 As noted by the British Columbia Court of Appeal in Equustek, above, at paragraph 85, “[o]nce it is accepted that a court has in personam jurisdiction over a person, the fact that its order may affect activities in other jurisdictions is not a bar to it making an order.” Further, in the context of Internet abuses, courts of many other jurisdictions have found orders that have international effects to be necessary
  25. 25. Brecknell - 2018 in the Internet era it is formalistic and artificial to draw a distinction between physical and virtual presence. Corporate persons, as I have noted, can exist in more than one place at the same time. With respect, I do not think anything turns on whether the corporate person in the jurisdiction has a physical or only a virtual presence. To draw on and rely on such a distinction would defeat the purpose of the legislation and ignore the realities of modern day electronic commerce
  26. 26. Intermediary Power
  27. 27. Facebook Findings - 2019 Facebook submits that neither the OPC nor the OIPC BC have jurisdiction to investigate the subject matter raised in the complaint. Specifically, Facebook asserts that there is no known evidence that Dr. Kogan provided Cambridge Analytica/SCL with any data for Canadian Facebook users and that all available evidence demonstrates that Dr. Kogan did not provide SCL with data concerning Facebook users located in Canada and only provided data about Facebook users in the United States. Facebook asserts that as a result, the subject matter of the complaint lacks any Canadian nexus.
  28. 28. Facebook Findings - 2019 Ultimately, we were very disappointed with Facebook’s response to our recommendations, which it provided to our Offices on March 27, 2019. Facebook disagreed with our findings and proposed alternative commitments, which reflected material amendments to our recommendations, in certain instances, altering the very nature of the recommendations themselves, undermining the objectives of our proposed remedies, or outright rejecting the proposed remedy. Facebook offered very limited remedial action over and above its existing practices. In our view, such commitments would not bring Facebook into compliance with PIPEDA or PIPA.
  29. 29. Future of Equustek Orders?