internet non-disclosure injunctions
How would one comply with a court order to unpublish unlimitable information?
<p>(If this has been asked, please deduplicate; I searched but couldn't find anything similar. Thanks!)</p>
<p>This is wholly hypothetical, I hope. Let's have two people, <a href="https://en.wikipedia.org/wiki/Alice_and_Bob" rel="noreferrer">&quot;Alice&quot; and &quot;Bob&quot;</a>. Alice publishes some data that, for whatever legal reason, they ought not to publish. Bob gets some sort of court order which directly instructs Alice to stop publishing the content. From what I've heard, the court may deputize Alice somewhat, instructing them to not just cease publication, but also to actively inform other publishers that they must cease &amp; desist. If those other publishers continue, then Bob may complain to the court again, and the court may order those other publishers to cease as well.</p>
<p>We are now in the 21st century, though, and the content may be available via e.g. Bittorrent, a <a href="https://en.wikipedia.org/wiki/Key%E2%80%93value_database" rel="noreferrer">key-value data store</a> which can make data internationally available as long as <em>one</em> person, somewhere in the world, is reachable and has a copy of the data. This can create a problem for Alice; let's imagine a third person, &quot;Mallory&quot;, who sits beyond the court's jurisdiction. Mallory openly flouts the court order by publishing a Bittorrent key (a <a href="https://en.wikipedia.org/wiki/Torrent_file" rel="noreferrer">torrent file</a> or <a href="https://en.wikipedia.org/wiki/Magnet_URI_scheme" rel="noreferrer">magnet link</a>) which allows anybody to obtain a copy of the data. (Also note that tools like <a href="https://boramalper.org/labs/magnetico/" rel="noreferrer">Magnetico</a> can be used to let anybody become an eavesdropper, passively learning Bittorrent keys as they transit the network. Mallory may &quot;openly flout&quot; the court without the equivalent of a conspicuous notice in a public place.)</p>
<p>Given that Alice has been instructed by the court to stop publishing the data, and given that Mallory refuses to stop publishing the data, <strong>what might Alice be obliged to do to comply with the court?</strong></p>
<p>Since this is an international question, answers can pertain to any jurisdiction!</p>

<p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" aria-label="show questions tagged &#39;united-states&#39;" rel="tag" aria-labelledby="united-states-container">united-states</a></p>
<p>This answer analyzes the question under U.S. law, although it is really generally applicable in all countries with a common law legal system. I'm not familiar with how non-common law countries address this issue at this level of granularity.</p>
<blockquote>
<p>Given that Alice has been instructed by the court to stop publishing
the data, and given that Mallory refuses to stop publishing the data,
what might Alice be obliged to do to comply with the court?</p>
</blockquote>
<p>Very little.</p>
<p>This is why courts very rarely issue orders like this one.</p>
<p>Disobedience to a court order is enforced with a contempt of court proceeding against a party that allegedly knowingly and willfully failed to comply with the court order. But an inability to comply with the court order (at least if this is not due to sabotage by the party subject to the order after that party learns of the order's existence) is a complete defense to contempt of court sanctions.</p>
<p>Contractually, this is why most non-disclosure agreements have liquidated damages and actual money damages remedies as well as the remedy of injunctive relief.</p>
<p>If harm that can't be unwound results from conduct taken before an injunction is in place, or as a result of a breach of an injunction that the person who was ordered to do something can't remedy, then a court imposes money damages and/or punitively imposes a criminal fine or incarceration on a party who defied a court order.</p>

<p>Courts generally recognize that it is futile to attempt to have something 'unpublished&quot;, and a proceeding seeking to prevent one party from publishing something is likely to be closed as moot if an independent party has already published.</p>
<p>This happens in the case of <a href="https://en.wikipedia.org/wiki/United_States_v._Progressive,_Inc." rel="noreferrer"><em>United States v. Progressive, Inc.</em> 467 F. Supp. 990 (W.D. Wis. 1979)</a> As the Wikipedia article says:</p>
<blockquote>
<p>The article was eventually published after the government lawyers dropped their case during the appeals process, calling it moot after other information was independently published.</p>
</blockquote>

<p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="canada-container">canada</a></p>
<p>One is only obligated to comply with a court order to the extent that it states &quot;clearly and unequivocally what should and should not be done.&quot; In order to be found in contempt, the person alleged to be in breach must have &quot;intentionally failed to do the act that the order compels.&quot; In all cases, the court retains the discretion to deny a finding of contempt where the alleged breaching party took reasonable steps to comply with the order. See generally <em>Carey v. Laiken</em>, <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15289/index.do" rel="noreferrer">2015 SCC 17</a> at paras. 30-37. This also implies that where a party <em>could not</em> have complied, they should not be held in contempt.</p>
<p>Orders are thus generally phrased in terms of <em>actions</em>, not <em>outcomes</em>. They state specifically what actions a party must do or not do. They don't typically bind a party to achieving an ulterior goal beyond what the actions ordered entail.</p>

<p>Alice is only responsible for Alice's actions, not the whole world.</p>
<p>So Alice can be ordered to stop publishing / take the content down, but the court would not order Alice to do something out of Alice's control.</p>
<p>This is separate from Alice's liability for what happened in the past.  For instance Alice could have published from a website under Alice's control, to allow quick takedown if ordered to do so.  However Alice chose to stuff it on BitTorrent.  If It looks like Alice did so <em>to pre-emptively thwart a takedown order that Alice figured was likely to come</em>, that would be reflected in higher money judgments awarded to Bob.</p>
<p>And if Alice put it on BitTorrent after being ordered to take it down, well, that's straight- up contempt of court and Alice could be cooling heels in county jail for a stretch. Again since there isn't anything Alice could do to wipe it off BitTorrent, its disappearance would not be made a condition of release.  However if the other seeders were few in number and willingly stopped seeding it and caused it to disappear, that is likely to impress the judge.</p>
