Last year’s Supreme Court of Canada Google v. Equustek case, which upheld a B.C. court’s global takedown order, continues to play out in the courts. 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 did just that by filing arguments in U.S. courts 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.’” A U.S. court agreed, noting that CDA immunity 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.”
Last week, the case shifted back to Canada with Google seeking to vacate or vary the takedown order in light of the U.S. ruling. Equustek opposed the motion, seeking to delay a hearing on the matter. The judge confirmed that the hearing should go ahead (it was scheduled to take place this week) in light of the U.S. ruling and the Supreme Court’s invitation to seek a variance in the order “if Google had evidence, or could demonstrate, concerns that another jurisdiction felt the injunction negatively impacted core values of freedom of expression or comity.”
The court notably agreed that the case now engages core values of freedom of expression and comity:
It is of considerable importance that the US District Court has made a final finding that the enforcement of the Canadian injunction in the US is causing irreversible harm to Google. I agree with Google’s counsel that the authority and basis of that judgment does engage the core values of freedom of expression in the United States. That right is treated differently than it is in Canada, and comity, with respect, warrants that this Court be very concerned if parties are going to insist on enforcement of a judgment, which another jurisdiction has found is not in compliance with its own laws. In fact, that is exactly the situation referred to by the British Columbia Court of Appeal and the Supreme Court of Canada that would justify Google’s application to vary the injunction.
The outcome of this latest legal development promises to shed new light on the Internet jurisdiction issues that the Supreme Court largely avoided in its Equustek ruling and could go a long way toward limiting the impact of future overbroad “Equustek” takedown orders.