Canadian Lawyer InHouse

13 CANADIANLAWYERMAG.COM/INHOUSE JULY 2017 Litigation and Arbitration By Julien Rheault and Danielle Ferron F aced with the inherently cross-border and intangible nature of cyberspace, the courts struggle to impose sanctions on people who use the Internet to commit unlawful acts. In fact, orders whose aim is to limit illegal acts committed on the web often remain unenforceable, because they cannot be enforced against the main per - petrators when, as is often the case, they are located in another jurisdiction. Is cyberspace, therefore, destined to remain a zone of impunity? In the coming months, the Supreme Court of Canada will render a decision likely to impose significant guidelines on the scope and enforceability of injunctions in cases of infringement by using the Internet. Depending on the decision rendered by the court, various players on the web may find themselves responsible for indirectly enforcing an injunction where a party to the proceedings fails to comply with an order issued against it. Heard by the SCC on Dec. 6, 2016, Google Inc. v. Equustek Solutions Inc. raises a number of important legal issues, in particular with respect to jurisdiction of the courts. Equustek Solutions Inc., a B.C. company that designs and manufactures network interface de - vices, partnered with Datalink Technologies Gateway Inc. to distribute Equustek products using the Datalink website. Over time, Datalink allegedly started counter- feiting and selling Equustek products under another name, using trade secrets acquired through its rela- tionship with Equustek. In 2011, Equustek accordingly obtained injunctions forcing Datalink to refrain from counterfeiting and selling its products. The problem? Datalink had moved outside Canada and, protected by cyberspace, continued to sell the counterfeit products. Equustek argued the Canadian orders issued against Datalink would, for all practical purposes, be unen - forceable and of no use. Determined to curtail Datalink's practices, Equustek turned to Google. The search engine was used by consumers to find Datalink's websites. Equustek sought an injunction from the B.C. Supreme Court to restrain Google from including Datalink sites in its search results, and not only on the Canadian Google site but on all Google sites. Both the B.C. Supreme Court and the B.C. Court of Appeal granted this extraterritorial injunction, thereby compelling Google "an innocent third party to police a court order restraining a defendant from violating a plaintiff 's rights" by removing Datalink sites from its search results on every Google site around the globe. It is well established in Canadian law that a non- party to an action who knowingly violates an injunc- tion is guilty of contempt of court. Furthermore, the courts may issue orders, such as Norwich or Mareva orders, against non-parties who are involved despite themselves and without any fault on their part. At trial, Justice Lauri Ann Fenlon relied in part on this reason - ing to conclude that the court had jurisdiction to issue the injunction against Google. The singularity of the injunction against Google, a non-party to the dispute, lies in the fact that Google merely listed the Datalink sites in its results. In addition, the parallel with Norwich or Mareva or - ders may seem somewhat tenuous, as such orders, which oblige third parties to disclose information or freeze a person's assets, are at least circumscribed and limited in time. Here, Google was enjoined to curb Datalink's excesses without the injunction being limited in time. In Google, however, the decisions of both the British Columbia Supreme Court and Court of Appeal were based on the decision in MacMillan, where the SCC, faced with acts of civil disobedience against a logging company, upheld the validity of an injunction against unknown members of the public, i.e., "John Doe, Jane Doe and Persons Unknown." The question arises whether in a case like Google, John Does and Jane Does will be forced to take on an even greater role to ensure compliance with, or even indirect implementation of, an order against a non- compliant party. One might then see a dichotomy between the de - sire to provide a remedy for the difficulties in applying and enforcing injunctions issued in a given jurisdiction against persons who reach their target market through the Internet, and what could prove to be onerous impo - sitions on certain participants on the web. Faced with the difficulties of enforcing orders issued in a specific jurisdiction against any person or company operating internationally on the web, will it fall to third-party players to regulate the cyberspace ecosystem? IH John and Jane Doe, beware! What is the role of a third party in enforcing injunctions? Julien Rheault is a lawyer and Danielle Ferron a partner with Langlois lawyers LLP.

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