A British Columbia court has denied Google’s request to vary an injunction requiring it to remove search results from its global index, concluding that a U.S. ruling that did not demonstrate that the removal would result in a violation of U.S. law. The Google v. Equustek case has attracted international attention with the Supreme Court of Canada upholding a global takedown order. That 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, emphasizing that CDA immunity protections would be lost as a result of the Canadian court order.
After Equustek failed to delay a hearing on the implications of the U.S. order, the B.C. court conducted a hearing last month and issued its decision earlier this week. The court distinguished between an order inconsistent with the safe harbour protections and a violation of the First Amendment, concluding that “the U.S. decision does not establish that the injunction requires Google to violate American law.” Rather:
The effect of the U.S. order is that no action can be taken against Google to enforce the injunction in U.S. courts. That does not restrict the ability of this Court to protect the integrity of its own process through orders directed to parties over whom it has personal jurisdiction.
The court addressed several other Google arguments that will likely resurface during the full trial as the current temporary injunction is set to expire at the conclusion of the trial. Google may appeal the latest ruling or await the trial for a full airing of its arguments.