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 ripoffreport.com and reviewstalk.com. 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 google.ca. The URLs, however, would appear in searches conducted using google.com or google.fr (French Google). In Canada, 95% of internet searches through google are performed using google.ca.
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 google.ca."
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):
- that there is strong evidence that the words are defamatory;
- that a failure to grant the injunction will result in irreparable harm; and
- 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 google.ca. The Court noted, that many of the searches, both on google.ca and google.com, 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.
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.