Jul 04 2017
Google has been ordered by the Supreme Court of Canada to remove, or de-index, a company’s website from its search results – worldwide. (See Google v Equustek)
The Datalink defendants (Datalink) were distributors of Equustek Solutions Inc.’s (Equusteck) networking devices and were found to be passing off Equusteck’s products as their own. After failing to comply with court orders to return confidential information, Datalink eventually left the province. However, Datalink continued selling the impugned products from an unknown location from its ever-changing websites all over the world.
The majority of the Court, in a 7-2 split verdict, upheld an interim injunction issued by the British Columbia Court of Appeal against Google, finding that despite Google’s third-party status, Google is a determinative player in allowing the harm to Equuskek to continue. As such, an injunction with extraterritorial scope was the only way in which the injunction would have any practical effect.
Google’s argument that such a global injunction violates international comity (i.e. that such an order could not be obtained in a foreign jurisdiction, or that Google’s compliance would violate foreign law), was deemed to be “theoretical”. Without an evidentiary basis, the Court found it was not fair to deny Equustek the extraterritorial scope it needed.
Of course, it is a nominal technicality for Google to comply with such a global injunction, seeing as Google already limits hate speech, child-pornography and copyright infringers. Rather, a freedom of expression concern raised was effectively that similar orders may be issued by states for more political purposes. The Court, however, did not address the issue in much detail, merely finding that “we have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods”. The Court further put the onus back on Google, that if it wishes to seek a rectifying order, it can do so.
In calling for restraint in their dissent, Justices Côté and Rowe noted that the injunction is effectively final, that the permanent injunction test has not yet been met and that the defendants’ websites can be found and accessed through other channels in spite of the sweeping injunction, limiting its effectiveness. The dissenting justices also found that that there are alternative remedies available to Equustek, like seeking injunctive relief against the internet service providers of the websites themselves.
IP rights holders will rejoice at the prospect of such an enforcement tool, since the decision places the burden on Google, rather than Equustek, to survey and determine whether such an injunction would be legally permissible worldwide. And while this case is limited to enforcing IP rights, the Court’s jurisdictional assertion over the internet, a realm with no boarders, will likely have more complicated and far-reaching regulatory effects, particularly when other jurisdictions follow suit.
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Author: Giselle Chin
This article is for information purposes only and does not constitute legal or professional advice.
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Tags: Giselle Chin, Search Engine