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Google v. Equustek: The Supreme Court of Canada Orders Google to De-Index Globally

Commentary First Amendment Patent

Google Inc., v. Equustek Solutions Inc., [2017] 1 S.C.R. 34 (Can.) opinion hosted by

 In a 7-2 decision, the Supreme Court of Canada ordered Google to delist certain webpages from its search engine pending a patent infringement trial. Rather than limiting the order to Google’s Canadian site, the Court required Google to delist the webpages globally. In so holding, the Court rejected Google’s arguments that such an injunction is unnecessary to prevent harm, that the company is immune from an injunction, and that an extraterritorial order is unnecessary, is improper, and is creating freedom of expression concerns.

 The case, Google Inc., v. Equustek Solutions Inc., [2017] 1 S.C.R. 34 (Can.), arises from a 2011 patent dispute between Equustek Solutions Inc. (“Equustek”) and Datalink Technologies Gateway LLC and affiliates (“Datalink”). Equustek manufactured networking devices and used Datalink as a distributor. Datalink allegedly began selling Equustek’s devices as its own and, using confidential information obtained from Equustek, designed a competing device. On Equustek’s behalf, a lower court granted an injunction against Datalink requiring the distributor to return all IP and stop advertising Equustek’s products. In 2012, a lower court determined Datalink failed to comply with the order and issued another. Following the second order, Datalink abandoned the proceedings, fled Canada, and continued operating internationally from an unknown location. Despite several additional court orders, Datalink continued operating and impacting Equustek’s business.

 In late 2012, Equustek asked Google to delist Datalink’s websites. After a lower court issued an order prohibiting Datalink from operating online, Google removed 345 Datalink webpages on its Canadian domain, consistent with its policy of delisting specific webpages rather than entire website. Despite Google delisting specific webpages on its Canadian domain, Datalink circumvented the court orders by moving the allegedly infringing content onto new pages within its websites. Equustek subsequently sought a court order to stop Google from showing any part of Datalink’s website on any Google search world-wide. A lower court granted the order “until the conclusion of the trial or further order of th[e] court.” Google appealed to the Court of Appeal of British Columbia, which dismissed the appeal and found that the lower court had in personam jurisdiction over Google, that it could issue an injunction against a third party, and that there was no identifiable freedom of expression concerns raised by doing so. Google subsequently appealed to the Canadian Supreme Court.

 Justice Abella, writing for the majority, agreed with the lower courts. The Court first held that Google can be subject to an injunction despite being a third party. In so holding, the Court relied on the reasoning in Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] 1 A.C. 133 (H.L.), to justify applying an injunction to an innocent third party who facilitates wrongdoing. The majority then rejected Google’s claim that a world-wide injunction is improper. The Court stated unequivocally that a Canadian court can grant a world-wide injunction against any person that the court has jurisdiction over. In defending the rationale for the injunction, Justice Abella stated that issuing a world-wide injunction was the only way to achieve the desired effect: preventing irreparable harm to Equustek. The Court likewise rejected Google’s claims that the world-wide effect tips the balance of convenience in Google’s favor, that the injunction violates international comity, that the injunction might force Google to violate other laws internationally, and that the injunction threatens freedom of expression. In rejecting these claims, the Court noted that Google can ask the court to vary any order if it can demonstrate that the injunction forces Google to violate another country’s laws or identify specific freedom of expression issues. Finally, the Court emphasized that Google is not liable for the misconduct despite being the “determinative player” in the wrongdoing.

 In dissent, Justices Côté and Rowe claim that the injunction is “effectively a permanent [one], against an innocent third party, that requires court supervision, has not been shown to be effective, and for which alternative remedies are available.” The dissent called for judicial restraint, agreeing that Canadian courts have the right to grant a world-wide injunction but disagreeing with such an injunction in this scenario. .

 Many groups participated in the proceeding as interveners, the Canadian equivalent to amici curiae. Interveners included the Attorneys General of Canada and Ontario, the Canadian Civil Liberties Association, OpenMedia, Reporters Committee for Freedom of the Press, the Associated Press, Wikimedia Foundation, Electronic Frontier Foundation, and many from the music industry.

 Joe Mullin, for Ars Technica, provides an overview of the case. Andrew Keane Woods, for Lawfare, argues that the ruling is reasonable and does not set a dangerous precedent for France’s pending Right to be Forgotten case. Aaron Mackey, Corynne Mcsherry, and Vera Ranier, all writing for the Electronic Frontier Foundation, argue that the ruling will embolden other countries to enforce their speech-restrictive laws internationally. The case has received international attention in the news, including articles written by The Verge, The Star, The Telegram, and The New York Times.

 Filippo A. Raso is a proud Canadian and a rising 3L at Harvard Law School. He currently serves as the Executive Editor of the Harvard Journal of Law and Technology Digest.