Posts Tagged injunction
Thank you Stephen Pittel for alerting me to 2017 SCC 34 Google Inc. v Equustek Solutions Inc. – alternative review ia here, and apologies for my late reporting: the case came to my attention late June. I have of course posted before on various aspects of worldwide removal and other orders, particularly in the context of the EU’s ‘right to be forgotten’.
Equustek sued Datalink for various intellectual property violations and found alleged insufficient co-operation from Google in making it difficult for users to come across Datalink’s offerings. Google seemingly did not resist jurisdiction, but did resist the injunction and any ex-Canada effect of same.
The majority in the case however essentially applied an effet utile consideration: if as it found it did, it has in personam jurisdiction over defendant, an extraterritorial reach is not problematic if that is the only way to make the order effective. An order limited to searches or websites in Canada would not have addressed the harm: see Stephen’s verbatim comment (referring to para 38 of the judgment). Google was ordered to de-index globally.
Dissenting opinions suggested Datalink could be sued in France, too, however this I suppose does not address the effet utile consideration of the majority.
C-191/15 Verein für Konsumenteninformation v Amazon SarL is one of those spaghetti bowl cases, with plenty of secondary law having a say on the outcome. In the EU purchasing from Amazon (on whichever of its extensions) generally implies contracting with the Luxembourg company (Amazon EU) and agreeing to Luxembourg law as applicable law. Amazon has no registered office or establishment in Austria. VKI is a consumer organisation which acted on behalf of Austrian consumers, seeking an injunction prohibiting terms in Amazon’s GTCs (general terms and conditions), specifically those which did not comply with Austrian data protection law and which identified Luxembourg law as applicable law.
Rather than untangle the bowl for you here myself, I am happy to refer to masterchef Lorna Woods who can take you through the Court’s decision (with plenty of reference to Saugmandsgaard Øe’s Opinion of early June). After readers have consulted Lorna’s piece, let me point out that digital economy and applicable EU law is fast becoming a quagmire. Those among you who read Dutch can read a piece of mine on it here. Depending on whether one deals with customs legislation, data protection, or intellectual property, different triggers apply. And even in a pure data protection context, as prof Woods points out, there now seems to be a different trigger depending on whether one looks intra-EU (Weltimmo; Amazon) or extra-EU (Google Spain).
The divide between the many issues addressed by the Advocate General and the more narrow analysis by the CJEU, undoubtedly indeed announces further referral.
(Handbook of) European Private International Law, 2016, Chapter 2, Heading 22.214.171.124.5.
Institute of Cetacean Research v. Sea Shepherd Conservation Society: A great illustration of (failure of) injunctive relief under ATS.
Institute of Cetacean Research v. Sea Shepherd Conservation Society has recently come to my attention thanks to Juliett Hatchett over at Baker: her analysis is spot on and I am happy to refer to it. She summarises the case as the district court confirming that perpetrating and funding piracy and unsafe navigation are within the scope of ATS jurisdiction, but holding that there is no enforceable international norm against whaling or financing terrorism.
The case is not easy to find however Sea Shepherd tend to link to court documents in their updates on the litigation.
I flag the case mainly to bring it to readers’ attention that CSR litigation can be done proactively: one need not wait for alleged violations of relevant legal standards to seek to seize a court. Exactly a point I assessed in the context of vulture fund litigation, end of May. (And in forthcoming paper).