Case Summary and Outcome

The Supreme Court of British Columbia dismissed a claim for a worldwide interim libel injunction against Google Inc. by a Vancouver lawyer and entered summary judgment for Google on the whole action. Glenn Niemela sued Google for defamation and sought an injunction to block 146 defamatory URLs from its global search engine, Google.com, the company having voluntarily agreed to remove the search results from its Canadian platform, Google.ca. Drawing on Canadian and U.K. case law to evaluate whether Google was a publisher of the URLs, the Court applied the “passive instrument test” which requires knowing involvement in the selection of the published words. The court dismissed the defamation claim reasoning that since snippets like hyperlinks and URLS are automatically generated in the search results, they do not constitute publication, and therefore Google was only a passive instrument. Applying a strict test, the court found insufficient evidence to support the additional claim of irreparable harm because 90% of the searches for Niemela’s name came from Canadian IP addresses where the impugned URLs were already delisted. Furthermore, the Court was reluctant to issue an order that could not be complied with since Google.com is incorporated in the U.S. where two federal statutes protect internet providers and block enforcement orders that would infringe on the First Amendment right to free speech.

Facts

In October 2012 and March 2013, several defamatory statements appeared on two worldwide websites that undermined the professional reputation of Glenn J. Niemela, a practising lawyer in Vancouver, Canada. The statements falsely accused Niemela of scamming and stealing from his clients without providing any proper legal assistance.

After local authorities became involved in the matter, no further postings were added to the websites, but the prior statements would still appear in search results against Niemela’s name, including on Google.com and its Canadian platform, Google.ca.

In addition to claims for including slander, libel, breach of privacy and injurious falsehood against Google, Niemela sought a mandatory injunction compelling the company to block from its Google.com the search results of 146 websites that provided links to the defamatory materials. This came after Google voluntarily agreed to remove the same websites from its Canadian search platform.

Decision Overview

Supreme Court Justice Fenlon delivered the opinion of the Court.

Justice Fenlon started with the mandatory injunction brought against Google to remove the search results of 146 websites from Google.com. Under Canada’s general test, derived from RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), the applicant must establish three elements for granting an injunction: “(1) there is a fair question to be tried; (2) that he will suffer irreparable harm if the injunction is not granted; (3) and that the balance of convenience favors the granting of the injunction.” [para. 17] Following the majority opinion of the Supreme Court of Canada in Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 CanLII 818 (SCC), Justice Fenlon held that the test “cannot be applied in the context of a defamation claim.” [para. 18] She reasoned that the context of the original case from which the general test originated was commercial in which the elements of “irreparable harm” and “balance of convenience” had some measurable meaning. She further explained that “where expression is unmixed with some other commercial purpose or activity, it is virtually impossible to use the second and third criteria without grievously undermining the right to freedom of expression.” [para. 18]

Justice Fenlon called for the application of a much stricter test in respect of the first criterion, “a fair question be tried,” elevating it to the “clearest of cases,” to mean that the words complained of are “manifestly defamatory.” [para. 20] To show that the statements are manifestly defamatory, the plaintiff must show:

“(1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff.” [para. 21]

Justice Fenlon held that even if the postings at issue were to be considered “manifestly defamatory,” Niemela’s application would fail on the second and third elements set out in RJR-MacDonald Inc. First, Justice Fenlon found insufficient evidence to support irreparable harm in the absence of an injunction against Google. She noted that Google had voluntarily removed the impugned URLs from its search engine in Canada where Niemela performed the vast majority of his law practice and that more than 90% of searches of Niemela’s name in English originated from Canadian IP addresses.

She also questioned the urgency in seeking an injunction given the fact that Niemela had waited two years to apply for such relief. Finally in respect of the injunction application, Justice Fenlon expressed the Court’s reluctance to issue an order that could not be complied with.  Google.com is incorporated in the U.S. where two federal statutes protect internet providers such as Google and block enforcement orders that would infringe on the First Amendment right to free speech.

Next, Justice Fenlon addressed the substantive claims that Google sought to dismiss. She first dismissed the claim for slander because it relates to an oral defamatory statement and not written communications that were facilitated by a Google search engine.

Niemela argued that Google had breached his privacy by publishing defamatory words about his law practice through the snippets attached to the URLs in search results. Justice Fenlon dismissed this claim on the grounds that he had no reasonable expectation of privacy in relation to how he performed his professional work. She said “[w]ork is in general a public aspect of a person’s life. While there are exceptions, such as solicitor-client privilege, a lawyer’s work with clients is conducted in a public forum.” [para. 45]

Justice Fenlon also dismissed the claim of libel, holding that Google was not a publisher of the text found at URLs identified in the search results. She did so in light of the Canada’s Supreme Court case, Crookes v. Newton, 2011 SCC 47 (CanLII), where the majority held that a hyperlink, by itself, could not be seen as publication of the content in question. Speaking for the majority, Supreme Court Justice Abella explained that “[r]eferencing on its own does not involve exerting control over the content. Communicating something is very different from merely communicating that something exists or where it exists. The former involves dissemination of the content, and suggests control over both the content and whether the content will reach an audience at all, while the latter does not.” [para. 26]  Similarly, Justice Fenlon identified the URLs that led to the websites of defamatory of statements as mere hyperlinks without further control by Google over the content accessible through the URLs.

Given that the Supreme Court’s decision in Crookes concerned the narrow issue of URLs, Justice Fenlon was faced with a novel question of law, namely, whether Google was a publisher of the snippets that appeared in the search results. A search snippet is a summary that describes the relevant content of a link provided by a search engine. Search results and snippets on Google’s websites are generated automatically through the operation of computer algorithms in response to search terms inputted by users.

Justice Fenlon referred to U.K. jurisprudence on what is required to hold someone as publisher. In Bunt v. Tilley, [2006] EWHC 407 and Metropolitan International Schools Ltd. v. Designtechnica Corp., [2009] EWHC 1765, the U.K High Court applied the “passive instrument” test that “[i]t is not enough that a person merely plays a passive instrumental role in the process”; there must be “knowing involvement in the process of publication of the relevant words.” [para. 86] The Canadian Supreme Court did not expressly adopt that test in Crookes but did endorse Metropolitan International Schools Ltd., which had applied it. Similarly, the Supreme Court of British Columbia in Weaver v. Corcoran, 2015 BCSC 165 (CanLII), recognized that “some awareness of the nature of the reader post is necessary to meet the test of publication.” [para. 103]Adopting the same approach, Justice Fenlon concluded that Google, in this instance, was a passive instrument and not a publisher of snippets. She explained that because snippets, like URLs, on Google’s websites are generated automatically through the operation of computer algorithms in response to search terms inputted by users, the company neither authorized nor did it play an active role in modifying or publishing them, other than providing its search service. Accordingly, Justice Fenlon dismissed the remaining claim of injurious falsehood, in which publication is an essential element, because Google could not be considered the publisher of the defamatory statements.