SCC Ruling Supports Worldwide Online Injunction

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In a ruling that may set a global precedent for the power of a single nation to affect the World Wide Web, the Supreme Court of Canada confirmed a lower-court order that Google delist a company’s website from its global search engine results.

Google Inc. v. Equustek Solutions Inc. originated in another action entirely. Years before, Equustek entered into an agreement with another company, Datalink Technology Gateways Inc., for the distribution of the former’s wireless communication products. In 2011, Equustek learned that Datalink was allegedly relabeling these products as its own, and had allegedly also taken confidential information to help it manufacture competing versions of the same product. Equustek was successful in its application for an interlocutory injunction requiring a return of all information belonging to Equustek, along with a list of clients who had purchased Equustek products through Datalink.

Datalink soon abandoned the proceedings and fled the jurisdiction. While orders were made freezing Datalink’s assets and a warrant issued for its principal’s arrest, Equustek was initially unsuccessful in ensuring compliance and in stopping Datalink from profiting from its alleged infringement of intellectual property. Hence, in 2012, it approached Google and requested that it de-index Datalink pages from the Google Search website. When Google refused, Equustek successfully applied to a court for an order to that effect. Google then de-indexed a number of Datalink pages, but limited these actions to its Canadian search engine (Google.ca); Datalink pages could still be accessed by searching on other country’s Google pages (such as Google.ru or Google.de).

The crux of this matter was the ineffectiveness of the local de-indexing: Equustek argued that this limited scope was an ineffective protection against alleged IP theft—especially when most of its business came from outside of Canada—and applied to have all of Datalink’s pages de-indexed across all of Google’s various search pages. Equustek succeeded in this application at trial, again on appeal at the British Columbia Court of Appeal, and—at last—at the Supreme Court of Canada.

The majority decision emphasized the technical nature of the interlocutory injunction: Justice Abella posed the defining question as: “whether granting the injunction would be just and equitable in all the circumstances of the case.” (Para 1) Much of the analysis then focused on the three requirements of an interlocutory injunction, as outlined in RJR-MacDonald Inc. v. Canada (Attorney General): “is there a serious issue to be tried; would the person applying for the injunction suffer irreparable harm if the injunction were not granted; and is the balance of convenience in favour of granting the interlocutory injunction or denying it.” (para 25). The fundamental question underlying those three issues is, however, “whether the granting of an injunction is just and equitable in all of the circumstances of the case.” (para 25) Lastly, it was frequently stated that injunctions are temporary, and designed to keep matters in stasis until a final legal determination of the issues can be made.

Google attempted to argue that it was inappropriate to issue an injunction against third parties and that it was inappropriate to issue an injunction with extraterritorial effect. The first provision was contrary to jurisprudence; the second was similarly contrary to established law—though Google argued that it was inappropriate to issue an injunction that had effect in foreign jurisdictions when those jurisdictions might not respect the law underlying that injunction, Google did admit that “most countries will likely recognize intellectual property rights and view the selling of pirated products as a legal wrong”. (para 44)

The majority was, however, careful to state the limits of this order, and of the use of this case as a precedent: First, the issue of whether this order could impact freedom of speech was dismissed: “This is not an order to remove speech that, on its face, engages freedom of expression values, it is an order to de-index websites that are in violation of several court orders. We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.” (para 48)

Nor, the majority ruled, did this order affect Google’s commitment to net neutrality: “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.” (para 49) As Canadian IP law scholar Michael Geist notes, this caveat is in contrast to what some interveners have claimed the decision states.

Indeed, the majority’s emphasis on the technical legal question of an injunction and the brief caveats and disclaimers may indicate that they may be attempting to minimize the impact this decision may have by simply ignoring the arguments regarding its possible scope. This tack is not necessarily wilful blindness. Rather, it could be a confidence trick: if, in handing it down, the Court strenuously acts as though the decision is merely one relating to technical legal formalism, chances are it might be treated as such in subsequent deliberations.

However, given the precedent this decision sets, there is still cause for concern. As Geist writes elsewhere:

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.

This blog post was written by a CCLA summer law student. Views expressed do not necessarily reflect the view of the CCLA.

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