Niemela v. Malamas
Page 11
reach what Mr. Niemela describes as “the second layer”. In any event, Google has
[31]
I conclude that Google’s voluntary removal of URLs identified by Mr. Niemela
has provided an effective means of preventing searchers in Canada from finding the
links to the offending websites. An injunction is not therefore required to prevent the
vast majority of the potential harm complained of by Mr. Niemela.
[32]
Third, Mr. Niemela has waited two years to apply for an interlocutory
injunction. I am not satisfied that there is any sudden urgency to justify granting an
interlocutory injunction ahead of the injunction to be sought at trial.
[33]
Finally, the Court is reluctant to make an order that cannot be complied with.
Mr. Niemela acknowledges that Google is not able to comply with an order
compelling it to block defamatory search results in the United States. Two federal
statutes, the Communications Decency Act of 1996, 47 USC (1996), and the
Securing the Protection of our Enduring and Established Constitutional Heritage
(SPEECH) Act, 28 USC (2010), protect internet providers such as Google and block
enforcement orders that would infringe on the First Amendment right to free speech.
[34]
While United States courts will generally recognize and enforce foreign
judgments, they will not do so if enforcement of the foreign court’s order would
violate the corporation’s constitutional rights to free speech: Yahoo! Inc. v. La Ligue
Contre Le Racisme et L’Antisemitisme, 169 F Supp 2d 1181 (ND Cal 2001) at 11921193, rev’d on other grounds 379 F 3d 1120 (9th Cir 2004).
[35]
Taking all of these factors into account, I conclude that this is not a case “in
which it appears to the court to be just or convenient that the order should be made”:
Law and Equity Act, R.S.B.C. 1996, c. 253 s. 39.
2015 BCSC 1024 (CanLII)
agreed to block those URLs as well, voluntarily removing them from google.ca.
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