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Effectiveness of Foreign Remedies to Obtaining Internet Information and Enjoining Illegal Conduct

The Internet has become the common form of commerce. As such, illegal activity has migrated there. The Internet is frequently used to engage in illegal activity cloaked in anonymity. Claimants have few if any direct means of enforcing their rights and court orders against the offenders. The power to make orders against Internet companies is essential to preserving the effectiveness of law online. Obtaining a remedy is often the practical solution to enforcing rights. Moreover, illegal online conduct crosses multiple jurisdictions often time simultaneously. As courts with personal jurisdiction have the power to adjudicate claims, it is essential that remedies have extraterritorial effect so to make it easier and less expensive for proceedings having to be brought in every country where the illegality occurs and the internet company operates.

For instance, Norwich Pharmacal orders are used to compel non-parties to disclose information or documents in their possession to assist in the discovery of wrongdoers. Norwich orders have increasingly been used in the online context by plaintiffs wo allege that they are being anonymously defamed or defrauded and seek orders against the Internet service providers to disclose the identity of the perpetrator. York University v. Bell Canada Enterprises  (2009), 311 D.L.R. (4th) 755 (Ont. S.C.J.); Cartier International AG v. British Sky Broadcasting LTD., (2017), 1 All E.R. 700 (C.A.). However, in Muwema v. Facebook Ireland LTD (2017) IEHC 69, the Irish High Court refused to grant a Norwich Pharmacal order against Facebook, requiring disclosure of the identity and location of an anonymous third party operating a Facebook page containing defamatory conduct. The court found that if Facebook disclosed such information it would endanger the life of the third party. But, Facebook was ordered to notify the third party that he should remove the offending postings within a certain period of time and if not, the plaintiff could renew its request for Norwich Pharmacal relief.

In addition, worldwide injunctions are available in English common law countries to cease conduct by a wrongdoer over which the court has jurisdiction. In Cartier,  Internet service providers were ordered to block the ability of their customers to access certain websites in order to avoid facilitating infringements of trademarks.  In Google Inc. v. Equustek Solutions Inc.  2017 SCC 34, the court ordered Google to block websites that were selling goods that violated the trade secrets of plaintiff. The court further held that this was a worldwide order and not confined to google.ca..

Although the law is evolving, claimants must use existing legal remedies to protect and enforce their rights. Courts are becoming much more receptive to helping the claimant.

This post was written byEric (Rick) S. Rein of Horwood Marcus & Berk Chartered.
Read more legal analysis at The National Law Review.

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