By Richard Stobbe

In 2015 an independent film-maker shot a film critical of the Vancouver aquarium, using some footage over which the Aquarium claimed copyright.  The Aquarium moved to block the online publication of the film.

Last year we wrote about that dispute and the preliminary injunction that prevented publication of parts of that documentary. In Vancouver Aquarium Marine Science Centre v. Charbonneau, 2017 BCCA 395 (CanLII),  the preliminary order was appealed, and the documentary film-maker won. The decision is noteworthy for a number of reasons:

• In a preliminary injunction, at the “balance of convenience” analysis, freedom of expression should be weighed, particularly in a case such as this, where the documentary film engages a topic of public and social importance. The court affirmed that freedom of expression is among the most fundamental rights possessed by Canadians.
• The Copyright Act has an exception related to “user-generated content” under section 29.21 of the Act. This unique provision has been somewhat neglected by the courts since it was introduced in 2012.  This case remains the sole judicial consideration of section 29.21. At the lower level, the judge did not sufficiently analyze the issue of “fair dealing”, including whether this content qualified as non-commercial user-generated content under s. 29.21. However, we will still have to wait until a trial on the merits, to see how the court will deal with the bounds of non-commercial user-generated content under the Copyright Act.

The court sided with the documentary film-maker and set aside the earlier injunction. If this case goes to trial, it will finally provide some guidance on the application of section 29.21.

Calgary – 10:00 MST

By Richard Stobbe

As noted in our recent summary of the Supreme Court of Canada (SCC) decision in the ongoing fight between Google and Equustek Solutions, Google lost in Canada’s top court. Google promptly filed an application in US Federal Court in California its home jurisdiction, on July 24, 2017,  seeking relief from the reach of the SCC order.

In a decision released November 2, 2017, the US court handed down its decision in Google v. Equustek, Case 5:17-cv-04207-EJD, N.D. Cal. (Nov. 2, 2017). The first few pages of the US decision provide a useful summary of the Google/Equustek story. The US Court entertained Google’s application that the SCC’s order is “unenforceable in the United States because it directly conflicts with the First Amendment, disregards the Communications Decency Act’s immunity for interactive service providers, and violates principles of international comity.”

The US court quickly concluded that Google is eligible in the US for Section 230 immunity under the Communications Decency Act. Essentially, under US law, Google is merely an intermediary or “interactive service provider”, and not a “publisher” of the offending content. As an intermediary, it takes the cover of certain provisions granting immunity from liability. Section 230 immunity is well-tilled soil in US courts, and Google has fought and won a number of cases under Section 230 already, so Google’s immunity was not news to Google.  By compelling the search engine to de-index content that is protected speech in America, the SCC order had the effect of undercutting Section 230 immunity for service providers, thereby undermining the goals of Section 230 which is to preserve free speech online.

This preliminary injunction releases Google – in the United States – from compliance with the Canadian court order. Whether Google is content to rely on this, or whether it will pursue a final decision on the full merits, and whether Google will apply to the Canadian court (as the SCC invited it to do) for a variance of the Canadian order… all remains to be seen.

Calgary – 15:00 MST

By Richard Stobbe

Those familiar with the controversy surrounding the Google / Equustek saga will be interested to know that Canada is not alone in extending its reach in internet-related disputes. This worldwide injunction was issued by an Australian court against Twitter in the case of X. v. Twitter [2017] NSWSC 1300.

The case deals with an injunction application to stop the unauthorised publication of the plaintiff’s confidential information. The publication occurred in the form of ‘tweets’ of certain secret financial information of an (apparently) anonymous plaintiff. The plaintiff company, identified simply as ‘X’, brought an injunction application against Twitter, a non-party to the underlying dispute, arising from conduct of an (apparently) anonymous defendant.

The mystery defendant created a Twitter account impersonating the plaintiff’s CEO, and then leaked certain information via the Twitter platform. When a complaint was sent to Twitter, it removed the offending tweets and the reported account for a violation of Twitter’s online terms (https://twitter.com/rules),  specifically the rules regarding impersonation.  As so often happens with internet-based shenanigans, the offending conduct merely resurfaced under a different account, and it continued and escalated. The court was convinced that this conduct was “clearly suggestive of a malicious intention to harm the plaintiff.”

In this case, the Australian court had no trouble establishing jurisdiction over Twitter, although the company did not file any defence, nor did it submit to the Australian court in any way. Much like the Canadian court in Equustek, the Australian court indicated that its jurisdiction over non-parties, and its extra-territorial reach, was nothing new. It has been making orders of this kind long before Twitter.

The court agreed to uphold the orders against Twitter to reveal the anonymous subscriber’s identity and to cause the “Offending Material” to be removed everywhere in the world from the Twitter platform and Twitter’s websites.

So far, there are no reports that the decision has been appealed.

Calgary – 10:00 MST