Ex parte injunction against author, Google, and GoDaddy for alleged defamation

In Nazerali v. Mitchell, 2011 BCSC 1581, the British Columbia Supreme Court issued an interim injunction against the author of an allegedly defamatory website, the hosting company, the domain name registrar (GoDaddy) and Google (for providing a cache of the site) on an ex parte basis.

The interim junction expires on December 2, 2011 and the plaintiff is required to bring a motion with notice to have the injunction maintained.

Regarding the ex parte basis of the motion, Justice Grauer wrote:

[18] The plaintiff’s position in this regard is based largely upon the technological ease with which those who carry on Internet campaigns can evade attempts to intercept them.  The plaintiff submits that if he were obliged to provide notice to all the respondents to this application, then the principal defendants, Mr. Mitchell and Deep Capture LLC, would simply transfer their domain name and website files elsewhere, and carry on what would possibly be an even more aggressive campaign of defamation, or create a parallel website under a different name so as to make the tracking down and removal of the defamatory articles almost impossible.

[19] While there is no reason to suppose that the defendants Godaddy.com, and Nozone, Inc. would do anything to evade enforcement, they would naturally tell their client of any notice given to them, and would not be in a position to prevent any steps taken by Mr. Mitchell and Deep Capture.

[20] I am satisfied on the evidence before me, particularly given the attitude demonstrated by Mr. Mitchell in his communications with Mr. Nazerali, that requiring the plaintiff to give notice to the respondents of this application would likely render the relief he seeks ineffective, and that it is appropriate in the circumstances for this application to be heard without notice.

Regarding Google and Google Canada, the Judge wrote:

[23] I note however that it is impossible surgically to eliminate just the offending phrases. Given the pervasive nature of the material concerning the plaintiff throughout the contents of deepcapture.com, the plaintiff’s undertaking as to damages and the temporal limit I have placed on the injunctive relief I am granting, I have concluded on balance that it is appropriate to grant the relief sought in relation to Google Inc. and Google Canada as well. Not to do so might well rob the plaintiff of the value of the relief he has obtained against the other respondents.

The website at issue does not currently seem to be available. It will be interesting to see if the injunction is maintained after December 2nd.

[Update: At the hearing for a permanent injunction held in December, 2011, the injunction was not extended.]

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