Canada: Right To Be Forgotten: Supreme Court Of British Columbia Denies Injunction To Compel A Search Engine To Remove Search Results Worldwide Niemela V. Malamas, 2015 BCSC 2014

Last Updated: July 13 2015
Article by Roberto Ghignone

Most Read Contributor in Canada, September 2016

The issue in this case was whether Google Inc. was required to remove links to defamatory posts from worldwide search results, rather than just Canadian search results.

The Plaintiff, Glenn Niemela, is lawyer based in the Vancouver area who has been the victim of online harassment and bullying. He alleges that the posts originate from one of his former clients who may be in biker gang. In the posts, Mr. Niemela is described as a scam artist and as dishonest. The posts first appeared in 2012 on various internet sites, including and Mr. Niemela reported this to the police who spoke with a suspect. Subsequently, no further posts appeared.

In 2014, Mr. Niemela concluded that his law practice had declined because of these posts: individuals would access them through the above-noted sites directly and see snippets of the comments in the Google search results. (Google displays a preview of the content of websites in addition to the hyperlink in search results.)

Mr. Niemela started two lawsuits. In the first lawsuit, he sued his former client as well as the operators of various websites which contained the posts.  In the second lawsuit, he sued Google Inc., alleging that Google was publishing defamatory material by including snippets in its search results.

The first action proceeded unopposed. Mr. Niemela was successful in obtaining injunctions against various known and unknown website owners for the removal of offending posts from 146 websites. Although these orders were not made against Google, it voluntarily agreed to remove the 146 URLs from search results displayed on The URLs, however, would appear in searches conducted using or (French Google). In Canada, 95% of internet searches through google are performed using

Mr. Niemela, however, wanted Google to remove the 146 URLs from its search results worldwide, not just Canada. He alleged that in the absence of a worldwide injunction his livelihood would continue to be affected arguing that: "any person's honour, reputation and personal privacy ought [not] to be marginalized or compartmentalized to solely one jurisdiction, being Canada, by solely blocking the offending URLs from"

At the same time, Google asked the Court to dismiss Mr. Niemela's action against it.


In order to obtain an injunction against Google, Mr. Niemela was required to meet the three part test set out by the Supreme Court in RJR-MacDonald v. Canada (Attorney General):

  1. that there is strong evidence that the words are defamatory;
  2. that a failure to grant the injunction will result in irreparable harm; and
  3. that the balance of convenience favours granting the injunction.

Although the Court found that Mr. Niemela may be able to establish that the words were defamatory, he would be unable to satisfy the second and third parts of the test.

On the basis of the evidence presented, the Court found that Mr. Niemela had not established that he would suffer irreparable harm.  First, the Court considered evidence from Google that 90% of searches for Mr. Niemela on its platforms originated from The Court noted, that many of the searches, both on and, likely originated from Mr. Niemela himself.

Second, the Court found that there were other possible explanations for the decline in Mr. Niemela's law practice: namely, a prominently displayed disciplinary history with the Law Society.

Lastly, the Court was reluctant to make the Order as it could not be complied with. Legislation in the United States prevents Google from complying "with an order compelling it to block defamatory search results" due to the possible infringement on the right to free speech.

The Court also found that  unlike in Equustek Solutions Inc. v. Jack, recently upheld by the Court of Appeal, where a worldwide injunction against Google was granted to hide websites offering counterfeit goods from search result, such a broad order was unnecessary in this case.

As such, the Court declined to grant the injunction.

Application to Dismiss

Google also asked the Court to dismiss Mr. Niemela's action. It argued that the presence of the snippets in the search results did not make Google the publisher of the defamatory content found in the snippets.

The Court agreed. The starting point for the Court's analysis was the Supreme Court of Canada's 2011 decision in Crookes v. Newton, which found that including a hyperlink was akin to publishing the content of the website linked to. With respect to the snippets which appear alongside the hyperlinks, the Court considered Canadian and British cases which found that a deliberate act was required before an entity, such as Google, could be deemed to be a publisher.

In particular, the Court found that the Google search algorithm was a "passive instrument" which is unaware of whether the content of the websites identified in the search results is defamatory. The Court concluded that "Google does not authorize the appearance of the snippets on the user's screen 'in any meaningful sense' but 'has merely, by the provision of its search service, played the role of a facilitator'." Mr. Niemela's claim against Google was dismissed.


The importance of search engines in navigating the internet means that litigants in a variety of cases including, defamation and breach of privacy actions, will increasingly seek remedies against search providers.

The Court's current approach is to consider whether the particular facts of each case warrant its intervention. In future cases, however, Canadian Courts will likely be required to explicitly consider whether there is a right to be forgotten in Canada.

Sadly, this will be our last blog for the BLG Law of Privacy in Canada. Barbara McIsaac, the prime author behind the blog has retired from BLG. Moving forward, BLG's Privacy and Data Security Group will continue to provide legal updates to communicate on developments in the fast changing privacy and cyber security field through regular bulletins and newsletters.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.