Sorry – your name isn’t on the list! Canada’s Supreme Court orders Google to de-index certain unlawful websites globally

A decision in June by Canada’s Supreme Court in Google Inc. v. Equustek Solutions Inc., 2017 SCC 34 has ordered Google to de-list certain unlawful websites from its search results worldwide. The decision has sparked immediate debate about the implications of such global takedowns on freedom of speech and on the power of Internet intermediaries.

Background

Equustek Solutions (Inc.) (Equustek), a small technology company in British Columbia, launched an action against Datalink Technologies Gateways Inc. and related defendants (Datalink) in April 2011, claiming that:

  • Datalink had relabelled one of Equustek’s products and passed it off as its own; and
  • Datalink had acquired confidential information and trade secrets belonging to Equuestek to design a competing product, called GW1000.

In September 2011, a lower court granted an injunction ordering Datalink to return source code to Equustek and prohibiting Datalink from referring to Equustek’s products on its websites. Datalink failed to comply with this order, before abandoning the proceedings and leaving the jurisdiction altogether. It continued to operate its business from an unknown location (a warrant was also issued for the arrest of its principal, Morgan Jack).

Not knowing Datalink’s location, and being unable to remove the websites, Equustek approached Google to request that it de-index (or de-list) the Datalink websites. Although Google agreed to remove specific webpages – not entire websites – from searches conducted from www.google.ca, this proved ineffective. First, users in Canada could still undertake searches for Datalink by simply using another country’s Google URL (e.g. “google.com.au”). Second, the majority of purchasers of the GW1000 product came from outside of Canada.

Equustek therefore sought an interlocutory injunction to enjoin Google from displaying any part of the Datalink websites on any of its search results worldwide. A lower court judge granted the order up until the end of the substantive trial. Google’s appeal to the Court of Appeal of British Columbia was dismissed. It then appealed to Canada’s Supreme Court.

‘The Internet has no borders’: the Supreme Court’s decision

In a 7-2 decision, the Supreme Court dismissed Google’s appeal.

The majority outlined the 3-part test for granting an interlocutory injunction as set down in RJR—MacDonald Inc. v. Canada (Attorney General) [1994] 1 SCR 311. The granting of such an injunction is a highly discretionary decision entitled to a high degree of deference. There must be a serious issue to be tried; consideration must be given to whether the applicant would suffer irreparable harm if the injunction was not granted; and the balance of convenience must favour the granting of an interlocutory injunction.

Google did not dispute that there was a serious issue to be tried, nor that Equustek continues to suffer irreparable harm as a result of Datalink’s ongoing sale of the GW1000. Google argued that an injunction should not be granted on two bases:

  • Non-parties cannot be the subject of an interlocutory injunction.
  • An interlocutory injunction with extraterritorial effect would be improper.

The majority rejected the first argument on the basis that much like a Norwich order (where non-parties may be compelled to disclose information in their possession where they are not guilty of wrongdoing but are so involved in the wrongful acts of others that they facilitate the wrongdoing) or a Mareva order (where non-parties may be compelled to assist in the freezing of a defendant’s assets), an interlocutory injunction was necessary to prevent the facilitation by Google of Datalink’s ability to defy court orders by making Datalink’s websites available to Internet users. Without injunctive relief, Datalink would continue to rely on Google to lead users to its websites.

In relation to the second argument, the majority found that since the ‘natural habitat’ of the Internet is global, the only effective way to apply the injunction was extraterritorially. Google had argued that this would be impractical to implement, and the order may not be effective in jurisdictions with heightened freedom of expression laws. However, the majority observed that in practical terms, Google would only have to take steps where its search engine is controlled (which it can do with relative ease) rather than in every jurisdiction. Google also did not put on evidence that the order would violate the laws of another jurisdiction, and even if it had, it could not be accepted ‘that freedom of expression requires the facilitation of the unlawful sale of goods’.

The majority considered that though Google was not liable for the harm, it was nevertheless ‘a determinative player’ in the harm’s occurrence. The effective way to mitigate the harm to Equustek was to grant an interlocutory injunction against Google.

The dissent

The two dissenting judges – Côté and Rowe JJ – would have allowed the appeal on five bases:

  • The effects of the order are final, since it removes any incentive for Equustek to proceed to trial. The order will entail the ceasing of Datalink’s website business altogether. It is ‘interlocutory in form’ but ‘final in effect’.
  • Datalink’s breach of the original order was its continued action of carrying on business through its websites. Since this act had nothing to do with visibility through Google searches, Google is a non-party.
  • The order will require complicated ongoing supervision by the courts, given Datalink is already launching new websites to replace de-listed ones (which may again become available on Google searches).
  • The order has not been shown to be effective, given Datalink’s websites can be accessed through a variety of means other than Google, such as other search engines and social media.
  • There are alternative remedies available to Equustek, especially given that Datalink has assets in France. A French court could entertain an application to freeze Datalink’s assets in France.

Implications

There has already been widespread outcry from freedom of expression advocates. One upshot of the decision appears to be that a domestic court has the ability to order – with worldwide effect – the filtering of content deemed objectionable in one particular country.

In terms of its general implications as to the powers of courts to influence the operation of companies such as Google in other jurisdictions, the decision may have consequences for the ambit of similar orders made in other countries. The decision may lead to a heightened willingness in Australian courts to apply orders to Internet intermediaries which have effect beyond our borders, and which have the potential to be both difficult to enforce and diplomatically hazardous.