juillet 4 2017

Google and Facebook : The Supreme Court rules

Jeansonne Andrée-Anne

On June 23rd and June 28, the Supreme Court rendered two important decisions involving web giants Facebook and Google.   




In a 4-3 split decision, the Supreme Court ruled that the forum selection clause included in Facebook’s terms of use is unenforceable, giving the green light for a class action which was instituted by a British Colombia resident.


The clause provides that “any claim, cause of action or dispute” must be resolved by a Californian court, under the laws of the State of California.


Mrs Douez claims that without her consent, Facebook used her name and profile photo in ads, in violation of section 3(2) of British Columbia’s Privacy Act. Specifically, Mrs Douez’s claim concerns Sponsored Stories. This ad format used the name and profile picture of an individual to promote a business to other Facebook users. These Sponsored Stories would appear in a user’s newsfeed informing them, for example, that their friend had « liked » a business page.


The majority of the Supreme Court held that the appellant had established strong reasons not to enforce the forum selection clause. Among these strong reasons, the Court noted “the grossly uneven bargaining power between the parties” and “the importance of adjudicating quasi-constitutional privacy rights in the province”.


To read the decision, click here.




The Supreme Court confirmed that provincial superior courts may rightly order the giant Google from removing content from its search engine worldwide. 


The facts giving rise to this dispute go back to 2011. The company Equustek Solutions brought an action against Datalink, a distributor of its products, claiming Datalink had relabelled one of the products and was passing it off as its own. Equustek Solutions was successful in its passing off claim, and an injunction was granted against Datalink.  However, Datalink did not comply with the order and left the province, and continued to operate on the Web, from an unknown location.  


Equustek therefore approached Google requesting that Datalink’s websites be de-indexed. Although the information was ultimately removed from the Canadian results, the websites were still appearing in search results across the world. The company sought an interlocutory injunction against Google, to enjoin them from removing Datalink’s websites from its search engine worldwide.


The injunction was granted by the Supreme Court of British Colombia and the decision was upheld by the Court of Appeal of the province, who dismissed Google’s appeal.


In the judgement of the Supreme Court, judge Abella, writing for the majority, declared that the test for granting an injunction had been met and that Google failed to demonstrate that the injunction violated freedom of expression. The majority also noted that “the only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates — globally.”


To read the decision, click here.




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