The Supreme Court of Canada released its much-anticipated Google v. Equustek decision today, upholding the validity of an injunction requiring Google to remove search results on an international basis. The 7-2 decision (Justices Côté and Rowe dissented, finding that there were alternatives available, the order is ineffective, and expressing concern that the “temporary” injunction was effectively permanent) is not a surprise – last week’s Facebook’s decision suggested a willingness to side with the weaker Canadian litigant against Internet giants – but the decision will ultimately grant Google more power, not less.
Google will obviously abide the ruling, but as I noted last year, what happens if a Chinese court orders it to remove Taiwanese sites from the index? Or if an Iranian court orders it to remove gay and lesbian sites from the index? Since local content laws differ from country to country, there is a great likelihood of conflicts. That leaves two possible problematic outcomes: local courts deciding what others can access online or companies such as Google selectively deciding which rules they wish to follow. The Supreme Court of Canada did not address the broader implications of the decision, content to limit its reasoning to the need to address the harm being sustained by a Canadian company, the limited harm or burden to Google, and the ease with which potential conflicts could be addressed by adjusting the global takedown order. In doing so, it invites more global takedowns without requiring those seeking takedowns to identify potential conflicts or assess the implications in other countries.
This case stems from claims by Equustek, a Canadian company, that another company used its trade secrets to create a competing product and engaged in misleading tactics to trick users into purchasing it. After struggling to get the offending company’s website taken offline, Equustek obtained a British Columbia court order requiring Google to remove the site from its search index. Google voluntarily removed search results for the site from Google.ca search results, but was unwilling to block the sites from its worldwide index. The B.C. court affirmed that the order applied on an international basis, however, issuing what amounted to global takedown order. The case then proceeded to the Supreme Court of Canada.
The Supreme Court’s majority decision was written by Justice Abella, who framed the case as follows:
“The issue in this appeal is whether Google can be ordered, pending a trial, to globally de-index the websites of a company which, in breach of several court orders, is using those websites to unlawfully sell the intellectual property of another company.”
Characterized that way, the outcome to uphold the order is no surprise. As the dissent notes, this is likely a permanent order, not a temporary one. Further, “selling the IP of another company” is an odd way of referencing the sale competing products that used trade secrets.
Justice Abella proceeds to analyze the law of injunctions, but for Internet watchers, the key aspects of the ruling come with the discussion of the Internet implications. The decision acknowledges the challenge of a global Internet order, but concludes that an international takedown is necessary to provide the Canadian company with an effective remedy:
“The problem in this case is occurring online and globally. The Internet has no borders — its natural habitat is global. The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates — globally. As Fenlon J. found, the majority of Datalink’s sales take place outside Canada. If the injunction were restricted to Canada alone or to google.ca, as Google suggests it should have been, the remedy would be deprived of its intended ability to prevent irreparable harm. Purchasers outside Canada could easily continue purchasing from Datalink’s websites, and Canadian purchasers could easily find Datalink’s websites even if those websites were de-indexed on google.ca. Google would still be facilitating Datalink’s breach of the court’s order which had prohibited it from carrying on business on the Internet. There is no equity in ordering an interlocutory injunction which has no realistic prospect of preventing irreparable harm.”
The majority was not persuaded by concerns about potential legal conflicts of a global takedown order, characterizing them as “theoretical” and indicating that it would be unfair to place the onus on Equustek to determine whether the order would be legally permissible in the other countries.
“Google’s argument that a global injunction violates international comity because it is possible that the order could not have been obtained in a foreign jurisdiction, or that to comply with it would result in Google violating the laws of that jurisdiction is, with respect, theoretical. As Fenlon J. noted, “Google acknowledges that most countries will likely recognize intellectual property rights and view the selling of pirated products as a legal wrong”
In the absence of an evidentiary foundation, and given Google’s right to seek a rectifying order, it hardly seems equitable to deny Equustek the extraterritorial scope it needs to make the remedy effective, or even to put the onus on it to demonstrate, country by country, where such an order is legally permissible. We are dealing with the Internet after all, and the balance of convenience test has to take full account of its inevitable extraterritorial reach when injunctive relief is being sought against an entity like Google.”
This is a key aspect of the decision as the court has effectively concluded that those seeking global takedown orders do not need to canvass the laws in other countries to consider the potential for conflicts with their request. In doing so, it places the obligation on intermediaries such as Google and increases the likelihood that those companies will pick and choose among the orders they are willing to follow.
The majority also concludes that responding to a global takedown will not interfere with Google’s neutral character in providing search results nor that it involves a significant inconvenience:
“I have trouble seeing how this interferes with what Google refers to as its content neutral character. The injunction does not require Google to monitor content on the Internet, nor is it a finding of any sort of liability against Google for facilitating access to the impugned websites. As for the balance of convenience, the only obligation the interlocutory injunction creates is for Google to de-index the Datalink websites. The order is, as Fenlon J. observed, “only a slight expansion on the removal of individual URLs, which Google agreed to do voluntarily”. Even if it could be said that the injunction engages freedom of expression issues, this is far outweighed by the need to prevent the irreparable harm that would result from Google’s facilitating Datalink’s breach of court orders.
Google did not suggest that it would be inconvenienced in any material way, or would incur any significant expense, in de-indexing the Datalink websites. It acknowledges, fairly, that it can, and often does, exactly what is being asked of it in this case, that is, alter search results. It does so to avoid generating links to child pornography and websites containing “hate speech”. It also complies with notices it receives under the US Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2680 (1998) to de-index content from its search results that allegedly infringes copyright, and removes websites that are subject to court orders.”
Of course, the inconvenience does not come from the technical side of removing search results, which is indeed trivial. The real inconvenience comes from conflict of laws and the potential for global takedown orders coming from across the planet, thereby opening the door to other countries choosing what Canadians might be able to find in search results. Those issues – along with the need to identify the laws in other countries in order to avoid conflicts – do involve significant inconvenience and expense.
This last paragraph noting that Google already removes links to certain content (hate speech, child pornography, and copyright takedowns) highlights the cumulative effect of court decisions and regulations that individually may seem reasonable but which quickly move toward takedowns of all kinds. In fact, the majority cites the international support for Internet injunctions with global effect as a justification for its own order. The net result is the expectation of all countries and courts that they may issue global takedown orders regardless of the impact on Internet users outside the jurisdiction or on Internet intermediaries.
The dissent rests largely on three issues: the notion that the injunction is effectively permanent, its limited effectiveness, and the availability of alternatives. On the term of the injunction:
“In our view, granting of the Google Order further erodes any remaining incentive for Equustek to proceed with the underlying action. The effects of the Google Order are final in nature. Respectfully, the pending litigation assumed by our colleague Abella J. is a fiction. The Google Order, while interlocutory in form, is final in effect. Thus, it gives Equustek more relief than it sought.”
On effectiveness, the dissent states:
“The most that can be said is that the Google Order might reduce the harm to Equustek which Fenlon J. found “Google is inadvertently facilitating” (para. 152). But it has not been shown that the Google Order is effective in doing so. As Google points out, Datalink’s websites can be found using other search engines, links from other sites, bookmarks, email, social media, printed material, word-of-mouth, or other indirect means. Datalink’s websites are open for business on the Internet whether Google searches list them or not. In our view, this lack of effectiveness suggests restraint in granting the Google Order.”
Finally, on alternatives:
“In our view, Equustek has an alternative remedy in law. Datalink has assets in France. Equustek sought a world-wide Mareva injunction to freeze those assets, but the Court of Appeal for British Columbia urged Equustek to pursue a remedy in French courts: “At present, it appears that the proposed defendants reside in France . . . . The information before the Court is that French courts will assume jurisdiction and entertain an application to freeze the assets in that country” (2016 BCCA 190, 88 B.C.L.R. (5th) 168, at para. 24). We see no reason why Equustek cannot do what the Court of Appeal urged it to do. Equustek could also pursue injunctive relief against the ISPs, as was done in Cartier, in order to enforce the December 2012 Order. In addition, Equustek could initiate contempt proceedings in France or in any other jurisdiction with a link to the illegal websites.”
Internet jurisdiction has always presented an enormous challenge for courts and governments. Courts fear that if they are unable to assert jurisdiction, the Internet risks becoming a proverbial “Wild West” with no applicable law. It is not technically hard to comply with global court orders. The difficulty comes with the effects of the order, since if every court asserts jurisdiction, the online world becomes over-regulated with a myriad of potentially conflicting laws.
When it comes to Internet jurisdiction, exercising restraint and limiting the scope of court orders is likely to increase global respect for the law and the effectiveness of judicial decisions. Yet this decision demonstrates what many have feared: the temptation for courts will be to assert jurisdiction over online activities and leave it to the parties to sort out potential conflicts. In doing so, the Supreme Court of Canada has lent its support to global takedowns and vested more power in Internet intermediaries, who may increasingly emerge as the arbiters of which laws to follow online.
Does Google currently block pirated products from its search engine on a global basis? For example can Disney ask Google to block all sites selling or providing copies of the movie Frozen? Isn’t that issue pretty much the same as Google v Equustek?
It is disturbing that neither the majority nor the minority in the SCC
mentioned the issue of courts in all sorts of repressive countries ordering the global takedown of content unacceptable to those countries – the point you led off this article with. Surely some counsel must have mentioned that risk to the court. It is irresponsible of the court not to appreciate the problem and address it.
Does anyone here truly think an Iranian or PRC court minded to censor content gives a damn about what the SCC says? I really see no reason to believe that such regime, which are the ones complained about, govern their conduct by our jurisprudence. That kind of hubris I expect more from American lawyers. When an Iranian litigant comes before our courts to request they compel google to block gay/lesbian etc. sites in Canada pirsuant to an Iranian court order, I would like to be in the courtroom when the judge dismisses the application from the bench. Public international law principles are adequate to deal with this, in this country anyway.
My bigger concern with the decision is that itnwas not argued on IP grounds. Trade secret law is different in different jurisdictions. Ny concern is that domestic Canadian law has been given extrateritorial effect, which I think a little concerning.
Here we are, in 2017, and STILL we have totally unqualified people trying to make “legal decisions” about all sorts of internet behaviour.
These decisions always have far-reaching implications (usually negative ones), and, for some reason, the geniuses behind these actions feel that taking ONE SEARCH ENGINE like Google, or ONE SOCIAL NETWORKING SITE (like Facebook) to court is going to fix everything.
I mean, if you’re going to sue a search engine, why only Google?! Why not ALL OTHER search engines (Bing, Scroogle, DuckDuckGo, etc.)?? Certainly they’re all “guilty” of “facilitating” whatever criminal activity they’re trying to pin on Google and/or Facebook.
Additionally, these suits are always about things that cannot possibly be more important than the very functions of the Internet they keep threatening to cripple. When that imbalance occurs, it’s time to realize that “intellectual property” should never have been given the scope it now has.
It’s going to take the Millennials to repeal these corrupt “Intellectual Property” laws so the balance is restored again.
God help us all…
I’m not so sure that they are unqualified, but it is clear that they are willfully ignorant. As Mr. Geist suggests “Courts fear that if they are unable to assert jurisdiction, the Internet risks becoming a proverbial “Wild West” with no applicable law.” The fact is that the internet is already, and will remain, a “wild west” and it is only by having purposefully limited exposure that it seems otherwise. We have to learn to live with that situation.
Anybody who has connected a computer to the open internet will know that there will instantly be dozens of break in attempts per hour. Often even more than that per minute. So you block those in different creative ways. Laws can’t do that. Most laws regarding the internet will fail and simply be ignored, either immediately, or with creative technical development. That the courts fear lack of control is a dangerous situation which can only lead to them making other laws that will have a negative impact on society. Fear is dangerous.
@Devils Advocate Explain how the Judges on the Supreme Court and their clerks (27 of the brightest young legal minds in Canada) are unqualified. Courts have been grappling with internet-related issues for the better part of 30 years. They receive tonnes of material from the parties and intervenors on both sides. Qualification and aptitude are not the problem. Indeed, given your stance, I’m sure you’ve been in favour of other SCC internet-related decisions, such as SOCAN v. Bell and ESA v. SOCAN. I guess they’re only unqualified when they take a pro-IP stance, huh?
You may disagree, but many consider IP rights important. Trade secrets are many companies’ most valuable assets. Search engines significantly facilitate infringement. That much is not debatable. It makes sense, in principle, that they should assist rights-holders with valid orders from reputable courts in ceasing to help people infringe. The devil may be in the details, but that’s where I stand as a matter of principle.
See my comment below for my concerns with this order, namely the extraterritorial effect conferred on domestic Canadian IP laws. That, I think is an issue the Court did not address. Maybe next time!
It’s interesting how, in your comment below, you seem to understand how insane it is to try and literally expand the jurisdiction of Canadian law to something “global”. Yet, your attachment to IP appears to blind you to the entire threat of this action.
Just because the Supreme Court may have, as you say, some of “the brightest LEGAL minds”, that doesn’t account for the lack of gross TECHNICAL ignorance still being demonstrated by the court to the way the Internet actually works.
Your comment below about IP just further enhances my point about how IP interests should not be trumping the very functional fabric of the Internet. When that is threatened by attempts to “enforce” IP, that indicates IP has already achieved far too much scope.
I’ll also remind you that IP is an artificial construct that was NOT imposed to circumvent culture (a natural construct). IP is the one that is supposed to adapt or die.
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taking it back to economic and “harm” being done IN Canada the equustek has “intellectual property” but maybe in some other jurisdiction maybe DATALINK is the LEGAL owner of the IP in question so we could end up with the Canadian court NOW violating the rights of a french company
OR how about Canadian distributers of public domain Beatles records BUT the US owner does teh same thing in teh USA where the terms of copyright are LONGER
now blocking the sales of LEGAL in Canada IP merchandise
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Does anyone here truly think an Iranian or PRC court minded to censor content gives a damn about what the SCC says? I really see no reason to believe that such regime, which are the ones complained about, govern their conduct by our jurisprudence. That kind of hubris I expect more from American lawyers. When an Iranian litigant comes before our courts to request they compel google to block gay/lesbian etc. sites in Canada pursuant to an Iranian court order, I would like to be in the courtroom when the judge dismisses the application from the bench. Public international law principles are adequate to deal with this, in this country anyway.
My bigger concern with the decision is that it was not argued on IP grounds. Trade secret law is different in different jurisdictions. My concern is that domestic Canadian law has been given extraterritorial effect, which I think a little concerning.
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