Posts Tagged worldwide removal order
Twitter injunctions – Twinjunctions if you like, rather like Facebook or Google Removal orders, provide classic scenarios for the consideration of the territorial scope of injunctive and enforcement proceedings. Michael Douglas has great review of  NSWSC 1300 X v Twitter. [P.s. 27 November: Michael has more analysis here]. On 28 September 2017, the Supreme Court of New South Wales awarded its final injunction with global reach, directed towards Twitter Inc (based at CAL) and its Irish counterpart, Twitter International Company.
Now, what is refreshing about Pembroke J’s review of the issues is his non-doctrinal analysis of the issue of jurisdiction. He emphasises that there is a long history of courts of equity making in personam orders that are intended to operate extra-territorially (the Court’s jurisdiction is one in equity); (at 40) that Twitter unlike other defendants may disagree with the ruling but will not seek to avoid its social responsibility; that there is a public interest in issuing the worldwide order (and in enforcing it: Pembroke J flags that there are Australia-based assets against which enforcement may be sought); and that given his experience with Twitter, it can be expected to use its best endeavours to give effect to the proposed orders, despite its objection that it is not feasible to pro-actively monitor user content.
Eventually of course the trouble with such an assessment, without consideration of wider issues of public and private international law, is that the issuing, or not, of orders of this kind by the courts, depends on the defendant’s attitude towards compliance. That is hardly a solution serving equal access to the law or indeed equity.
Update 8 November 2017 thank you Dan Svantesson for alerting me to Google seeking preliminary injuntive relief against the order’s enforement in the US. relief which, update 5 February 2018, was granted.
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.