“We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods,” states the opinion.
A legal battle between two companies in Canada has resulted in a chilling order for Google: It must remove an allegedly infringing website from its global search engines.
The Supreme Court of Canada published the 7-2 decision Wednesday prompting criticism that the high court is censoring freedom of expression.
First, it’s important to note that — despite the direct effects of this decision on Google — the internet behemoth is not a party to the lawsuit that led to this judgment.
In 2011, Equustek Solutions, a small Canadian tech company, sued Datalink Technology Gateways, claiming that while acting as a distributor Datalink began to relabel products and pass them off as its own and then used confidential information and trade secrets to launch a competing product. The court barred Datalink from selling the inventory and using Equustek’s intellectual property — but Datalink ignored the orders and continued running its business from an unknown location and selling the infringing products online. (There’s an outstanding warrant for Datalink principal Morgan Jack’s arrest.)
That’s where Google comes in. In 2012, Equustek asked Google to de-index Datalink’s sites, but the internet giant refused unless the court ordered Datalink to stop doing business online. The Supreme Court of British Columbia issued that order and Google de-indexed hundreds of webpages associated with the company but not all of its websites — and limited the de-indexing to its Canada-specific site google.ca.
Equustek then obtained an interlocutory injunction to stop Google from displaying any part of Datalink’s websites in worldwide search results. Google’s appeal of the injunction was dismissed.
Canada’s high court on Wednesday upheld that 2015 appellate decision, ordering the web giant to remove those sites from its search engines across the globe.
The discussion in the current judgment focuses on whether Google can be ordered via an interlocutory injunction to globally de-index websites that unlawfully sell intellectual property of another company and whether the Supreme Court of British Columbia had jurisdiction to grant such an injunction. In short, they say the answer is yes — because Datalink wouldn’t be able to harm Equustek effectively if its website wasn’t searchable on Google.
“The Internet has no borders — its natural habitat is global,” writes Justice Rosalie Abella. “The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates — globally.”
If Google feels complying with the injunction would violate the laws of another jurisdiction or interfere with freedom of expression, Abella invites the company to ask the court to vary the order accordingly.
“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,” she writes. “We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.”
Technically, the injunction is intended to prevent more harm to Equustek until the resolution of its legal fight with Datalink, but the result is effectively final according to the two justices who dissented.
“[T]he Google Order in effect amounts to a final determination of the action because it removes any potential benefit from proceeding to trial,” states the dissent. After all, they argue, Equustek has already been granted far more relief than it initially asked for. “Equustek sought injunctions modifying the way in which Datalink carries out its website business, along with damages and declarations. … Respectfully, the pending litigation assumed by our colleague Abella J. is a fiction. The Google Order, while interlocutory in form, is final in effect.”
They argue that because the interlocutory injunction has a final effect, an extensive review of the merits of the case was warranted — but that analysis never happened. Further, they argue that Google didn’t aid and abet Datalink in breaching the court’s order to stop doing business online and that this order will be an ongoing burden for the internet giant.
“[T]he Google Order is mandatory and requires ongoing modification and supervision because D is launching new websites to replace de-listed ones,” states the dissent. “Courts should avoid granting injunctions that require such cumbersome court-supervised updating.”
Several organizations including the Electronic Frontier Foundation, Wikimedia, Reporters Committee for Freedom of the Press, and Human Rights Watch have joined Google in expressing concerns about the global implications for freedom of expression resulting from such a decision. EFF published a lengthy post in response to the decision, describing it as “worldwide Internet censorship.”
This decision marks the biggest legal loss for Google since an EU court in 2014 ruled that it must comply with Europe’s “right to be forgotten,” which allows, under certain circumstances, citizens to petition search engines to delete links that lead to outdated personal information.
A rep for Google sent The Hollywood Reporter a statement Wednesday: “We are carefully reviewing the Court’s findings and evaluating our next steps.” The decision is posted in full below.