This pivotal decision stems from Google's failure to comply with a court order to reinstate the YouTube channels of the Foundation for Orthodox Television, a non-profit organisation based in Russia, dedicated to producing and broadcasting content related to the Russian Orthodox Church and its teachings.
The foundation's programming typically includes religious services, sermons, documentaries about Orthodox Christianity, educational programmes, and other content aimed at promoting and educating viewers about the Orthodox faith.
This decision follows that in June 2023, a Moscow court ordered Google LLC, the American branch of Google, to restore the YouTube channels of the Foundation for Orthodox Television. This order included a provision for a monetary compensation mechanism, known as a penalty for non-compliance, where Google would incur fines for each day they failed to comply.
Despite this order, Google did not reinstate the channels, prompting the Foundation to seek enforcement in other jurisdictions, including South Africa.
This case sets a significant precedent, highlighting the potential legal and financial consequences for global tech giants operating within South Africa.
Hugo Johnstone of Pagel Schulenburg Attorneys explained that to enforce the Moscow court's order in South Africa, the Foundation brought an ex parte application, which has two main components, namely that of electronic service - allowing the application to be served electronically on Google LLC; and jurisdiction establishment - establishing jurisdiction by attaching Google South Africa's shares and trademarks.
Johnstone stated that by attaching these assets, the South African court ensured that it had the authority to hear the case and potentially enforce the Moscow judgment.
"Now we are proceeding with the main application, which is to get this foreign judgment recognised in South Africa," he clarified. "Google will now have a chance to oppose this if they so wish, and thereafter they’ll deliver their answer to our application. Then we’ll see what the court ultimately makes of it.
"In South Africa we do have a history of having foreign judgments recognised in South Africa, but [this is] a new principle to be tested in our courts."
Johnstone said instructing attorney, Art De Lex in Russia, has instructed similar actions against Google in different jurisdictions around the world.
Should the South African court recognise the Moscow judgment, the financial implications for Google could be substantial. The fines, calculated at 100,000 rubles per day and doubling each week for nine months, could amount to significant penalties, potentially reaching millions of rands over extended non-compliance periods.
This does not mean immediate financial loss for Google, Johnston noted. Its shares and trademarks are currently held by the sheriff as a form of legal leverage.
"Just to clarify, there’s no order at the moment in South Africa saying that Google must pay this," Johnstone said. "We are just asking that the court recognise the foreign judgment – and that will then have the consequences that follow."
