Student Writer, Windsor Law LTEC Lab
On Thursday June 28, 2017 the Supreme Court of Canada (the “SCC”) released its highly anticipated decision in the Google Inc. v Equustek Solution Inc. case. The case involves the intersection of censorship, freedom of expression and anti-competition in the context of technology.
Equustek, a manufacturer of networking devices, sought an injunction that would force Google to de-index the website of Equustek’s distributor-turned-competitor, Datalink. Datalink was formerly a distributor of Equustek’s products, until Equustek sued Datalink for infringing its intellectual property rights in 2011. Datalink passed off Equustek’s products as their own by relabeling and repackaging the goods, and also used trade secrets to develop a product similar to Equustek’s product. A number of injunctions were ordered against Datalink, including orders prohibiting the company from selling Equustek products or referring to Equustek on its website. Datalink fled the jurisdiction and refused to comply with the orders so Equustek turned to Google. Equustek requested that Google remove Datalink’s website from its index, which would exclude Datalink web pages from all Google searches. Google only agreed to de-index offending pages from searches conducted using Google Canada’s search engine. Google refused to de-index the entire Datalink website and to de-index the searches in Google search engines worldwide. Equustek sued Google.
The British Columbia Superior Court granted an interlocutory order prohibiting Google from referencing any pages from the Datalink website in search results worldwide during Equustek’s ongoing trial. The British Columbia Court of Appeal upheld this decision. Google appealed to the SCC.
The SCC upheld the order. Writing for the majority (7-2), Justice Abella noted that the “Internet has no borders – its natural habitat is global.” A number of customers buying Equustek’s products and/or visiting Datalink’s website are outside Canada; therefore, says Justice Abella, in order for the injunction to be effective in mitigating the harm suffered by Equustek, it must have global reach.
This outcome is practical from Equustek’s perspective; however, critics worry that the SCC decision may be used as precedent in foreign jurisdictions for ordering the removal of alleged offensive material from indexes across the globe. Michael Geist, Professor at the University of Ottawa Faculty of Law, comments on his blog:
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.
These concerns were raised by Electronic Frontier Foundation (“EFF”), a US non-profit organization, in a Factum EFF filed with the SCC as an intervener in the Google Inc. v Equustek Solutions Inc. case. EFF argued that the decision had the potential to create a precedent for courts in other jurisdictions to “edit the entire internet.” EFF proposed a more stringent test be used to determine whether to grant the interlocutory order. The organization argued that a court must consider whether a mandatory injunction will offend the core values of other nations, and suggested that the injunction in this matter would be contrary to US policy and laws protecting free speech.
The dissenting opinion delivered by Justices Côté and Rowe presents entirely different reasons for why the court should show restraint in granting the injunctive relief. These reasons include the finality of the order, that Google did not aid or abet Datalink in carrying on business, and that there was no evidence that the injunctive relief would be an effective remedy. Justices Côté and Rowe also disagreed with the trial judge who commented, “Google is inadvertently facilitating” the reprehensible conduct of Datalink; the dissenting opinion points out that even if Google de-indexes the websites, the web pages will still be accessible through different search engines.
I disagree with the dissenting opinion that removing Datalink’s websites in their entirety from Google’s indexes is ineffective. Google is a behemoth. It is by far the most popular search engine and many modern businesses depend on Google to direct customer traffic to their sites. Nevertheless, what might be an effective remedy for Equustek, may come at an unfortunate cost for other internet users around the world. The decision does leave open the interpretation that it can be used as precedent for requesting global takedowns of information on the internet. There is a risk that this decision will be used inappropriately in other jurisdictions, and perhaps the SCC should have attempted to mitigate the risk in their reasons. For now, we will have to wait and see how this decision is applied or looked to elsewhere.