In a recent decision from the British Columbia Court of Appeal, the Court upheld an interlocutory injunction that forced Google to prohibit any websites of an alleged distributor of counterfeit goods to appear in Google search results. Google, who is not a party to the action against the defendant, argued that the Court could only prohibit Google from listing the defendant’s websites on “google.ca”, but not on any other international sites run by Google.
Google submitted that the Court could not restrain Google in its actions outside of Canada, because (a) the BC Court did not have jurisdiction to make orders about activity in other jurisdictions, and (b) the BC Court did not have jurisdiction over Google.
In dismissing the appeal, the Court of Appeal confirmed that as long as the court has jurisdiction over the underlying action (which was not disputed), it will have jurisdiction over any ancillary motions arising from that action – even if the motion involves restraining a non-resident non-party like Google. The court pointed to the example of Mareva injunctions, which generally impose restrictions on third party banks from transferring a person’s funds, and those orders generally apply globally.
In any event, the Court of Appeal also held that it did have jurisdiction over Google because Google carried on business in the province. Once it had jurisdiction over Google, it was authorized to restrain Google’s conduct on an international scale. As pointed out by the Court of Appeal, British Columbia courts take jurisdiction over non-residents, and make rulings about non-residents, all the time.
The Court of Appeal also considered issues of comity and the desire to avoid making international orders that (a) are unnecessarily broad, or (b) are offensive to the core values of another jurisdiction. The Court again held that the order needed to be international in scope, as a limited order would not protect the plaintiff’s interests as the defendant could continue to make itself available internationally, and found that protection of intellectual property rights through an injunction was not contrary to the core values of any other jurisdiction.
Interestingly, the Plaintiff was supported by the International Federation of Film Producers Assoc. and the International Federation of the Phonographic Industry as intervenors. Though the issue in dispute had nothing to do with films or phonographs, it was readily apparent that these associations had a vested interest in ensuring plaintiffs can obtain meaningful international injunctions preventing defendants from appearing in search engines in their ongoing interest in combating online piracy.
If you require injunctive relief, or have a matter relating to online intellectual property issues, please contact us for an initial consultation.
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