A U.S. federal court has issued a preliminary injunction blocking enforcement of a Canadian court order requiring Google to remove search results on a global basis. Google filed suit in U.S. court in the aftermath of a Supreme Court of Canada decision upholding a B.C. court’s global takedown order. The Supreme Court decision noted that it was open to Google to raise potential conflict of laws with the B.C. court in the hopes of varying the order:
If Google has evidence that complying with such an injunction would require it to violate the laws of another jurisdiction, including interfering with freedom of expression, it is always free to apply to the British Columbia courts to vary the interlocutory order accordingly.
Google’s action in the U.S. starts down toward that path. It argued that “the Canadian order is ‘unenforceable in the United States because it directly conflicts with the First Amendment, disregards the Communication Decency Act’s immunity for interactive service providers, and violates principles of international comity.’” The court focused on the CDA immunity argument, noting that its protections would be lost as a result of the Canadian court order. In doing so, the court concluded that the order “threatens free speech on the global internet.”
Equustek did not participate in the hearing, apparently arguing in a side letter that it was “unnecessary and unfair.” Google is now likely to seek a permanent injunction blocking the Canadian ruling from being enforced in the United States. As I noted several months ago, the U.S. case is precisely what critics of the Supreme Court ruling feared with the prospect of conflicting rulings, protracted litigation, and legal uncertainty becoming a reality. By upholding global takedowns without fully grappling with the implications, the Supreme Court effectively invited other courts to issue conflicting decisions without guidance on how to best resolve the issue.