The Honourable Madam Justice Fenlon established clear boundaries to the issuance of extra-jurisdictional takedown requests in the matter of Niemela v Malamas, 2015 BCSC 1024. Glenn Niemela, a Vancouver lawyer, petitioned the Court to block defamatory comments from Google’s international search results after an order made to remove URLs failed to remove all references to defamatory material.
Since 2012, Niemela had been subject to a campaign of defamation. Niemela believes that at least part of this campaign was caused by the defendant, Strato Malamas, an aggrieved former client of Niemela’s and an alleged member of the Hell’s Angels. After a police investigation, Niemela was able to obtain two orders for the defendant to remove over 500 links. However, Niemela returned to Court last month when he found that some references to defamatory materials continued to appear.
Google had been a non-party to the first action but voluntarily removed 146 URLs from Google.ca. When Niemela returned to court to request that the order be extended internationally, he named Google as a party and requested an injunction.
In the current matter, Justice Fenlon found that Niemela had never worked outside of British Columbia, thus providing little justification for an order broader than his area of practice. Furthermore, although Niemela claimed the defamation results had caused a decline in his practice, Justice Fenlon found that the decline was not necessarily attributable to those queries, speculating that prominent search results revealing a disciplinary history with the law society may be responsible.
Justice Fenlon noted that the results showing defamatory comments were low ranking, and that “few searchers will be motivated to move through 380 search results” to reach the defamatory comments. At trial, Google voluntarily agreed to block those URLs as well (from Google.ca).
Finally, Justice Fenlon declined to make an order with which Google might not be able to comply. While US Courts generally recognize and enforce foreign judgments, they will refuse to do so if those orders would violate the corporation’s Constitutional rights to Free Speech.
Disclaimer: This Newsletter is intended to provide readers with general information on legal developments in the areas of e-commerce, information technology and intellectual property. It is not intended to be a complete statement of the law, nor is it intended to provide legal advice. No person should act or rely upon the information contained in this newsletter without seeking legal advice.
E-TIPS is a registered trade-mark of Deeth Williams Wall LLP.