03/02/2020 2017 FC 114 (CanLII) | CanLII reaffirmed and applied more recently in cases such as Holt Cargo Systems Inc. v. ABC Containerline N.V. (Trustees of), [2001] 3 S.C.R. 907, 2001 SCC 90, at para. 71; Spar Aerospace Ltd. v. American Mobile Satellite Corp., [2002] 4 S.C.R. 205, 2002 SCC 78; Unifund, supra, at para. 54; and Beals v. Saldanha, [2003] 3 S.C.R. 416, 2003 SCC 72. From the outset, the real and substantial connection test has been viewed as an appropriate way to “prevent overreaching . . . and [to restrict] the exercise of jurisdiction over extraterritorial and transnational transactions” (La Forest J. in Tolofson, supra, at p. 1049). The test reflects the underlying reality of “the territorial limits of law under the international legal order” and respect for the legitimate actions of other states inherent in the principle of international comity (Tolofson, at p. 1047). A real and substantial connection to Canada is sufficient to support the application of our Copyright Act to international Internet transmissions in a way that will accord with international comity and be consistent with the objectives of order and fairness. 61 In terms of the Internet, relevant connecting factors would include the situs of the content provider, the host server, the intermediaries and the end user. The weight to be given to any particular factor will vary with the circumstances and the nature of the dispute. 62 Canada clearly has a significant interest in the flow of information in and out of the country. Canada regulates the reception of broadcasting signals in Canada wherever originated; see Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42. Our courts and tribunals regularly take jurisdiction in matters of civil liability arising out of foreign transmissions which are received and have their impact here; see WIC Premium Television Ltd. v. General Instrument Corp. (2000), 2000 ABCA 233 (CanLII), 8 C.P.R. (4th) 1 (Alta. C.A.); Re World Stock Exchange (2000), 9 A.S.C.S. 658. 63 Generally speaking, this Court has recognized, as a sufficient “connection” for taking jurisdiction, situations where Canada is the country of transmission (Libman, supra) or the country of reception (Liberty Net, supra). This jurisdictional posture is consistent with international copyright practice. [52] As Mr. Radulescu and Globe24h.com are foreign-based, the Court must consider whether there is a real and substantial connection between them and Canada to find that PIPEDA applies to their activities. The operative question underlying the test is “whether there is sufficient connection between this country and the [activity] in question for Canada to apply its law consistent with the ‘principles of order and fairness’” and international comity: SOCAN, above, at paras 57 and 60. [53] This Court has applied PIPEDA to a foreign-based organization where there was evidence of a sufficient connection between the organization’s activities and Canada: Lawson v Accusearch Inc (cob Abika.com), 2007 FC 125, [2007] FCJ No 164 at paras 38-43 [Lawson]. The relevant connecting factors include (1) the location of the target audience of the website, (2) the source of the content on the website, (3) the location of the website operator, and (4) the location of the host server: SOCAN, above, at paras 59 and 61; see also Lawson, above, at para 41; Davydiuk v Internet Archive Canada, 2014 FC 944, [2014] FCJ No 1066 at paras 31-32 [Davydiuk]; Desjean v Intermix Media, Inc, 2006 FC 1395 (CanLII), [2006] FC 1395, [2007] 4 FCR 151 at para 42 [Desjean], aff’d 2007 FCA 365; Equustek Solutions Inc v Google Inc, 2015 BCCA 265, leave to appeal to the SCC granted [2015] SCCA No 355 [Equustek]. [54] In this case, the location of the website operator and host server is Romania. However, when an organization’s activities take place exclusively through a website, the physical location of the website operator or host server is not determinative because telecommunications occur “both here and there”: Libman v The Queen, 1985 CanLII 51 (SCC), [1985] 2 SCR 178 at p 208 [Libman]. [55] In its submissions, the OPCC highlights three key connecting factors between the foreign-based website and Canada. First, the content that is at issue is Canadian court and tribunal decisions containing personal information which was copied by the respondent from Canadian legal websites. Second, the website directly targets Canadians by specifically advertising that it provides access to “Canadian Caselaw”/”Jurisprudence de Canada”. The evidence is that the majority of visitors to Globe24h.com are from Canada. Third, the impact of the website is felt by members of the Canadian public. This is evidenced by the complaints received both by the OPCC and media reports of individuals suffering distress, embarrassment and reputational harm because of Globe24h.com https://www.canlii.org/en/ca/fct/doc/2017/2017fc114/2017fc114.html 9/21