Canada’s Supreme Court upheld a British Columbia court ruling today that ordered Google to de-list entire domains and websites from its global search index.
The 7-2 landmark ruling stems from case Google v. Equustek, which began when BC-based technology company Equustek Solutions accused distributor Datalink Technology Gateways of relabeling one of its products and selling it as their own online. Further, Equustek also claimed Datalink acquired trade secrets in order to create a similar competing product. Datalink first denied the accusations, then fled the province to continue business operations. Datalink representatives never appeared in court, and Equustek won default judgment.
Though Google was never directly named in the lawsuit, Equustek requested that the search engine remove Datalink search results until the allegations could be tested. Google did so voluntarily, de-indexing over 300 websites associated with Datalink, but only on the Canadian version of the search engine.
The Supreme Court of BC then granted a broader injunction ordering Google to stop displaying search results globally for any Datalink websites, which Google appealed in the Supreme Court of Canada. The court found in favor of Equustek, rejecting Google’s argument that the right to freedom of expression should have prevented the order from being issued.
Justice Rosalie Abella called Google a “determinative player” in allowing harm to Equustek. The court wrote in its ruling: “This is not an order to remove speech that, on its face, engages freedom of expression values. We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.” It further added, “The problem, in this case, is occurring online and globally. The Internet has no borders; its natural habitat is global. The only way to ensure the interlocutory injunction [order] attained its objective was to have it apply where Google operates – globally.”
While it stands to reason that the court is enjoining Datalink’s behavior (an injunction can be granted for anywhere in the world in order to ensure the injunction’s effectiveness), it also raises the issue of Canadian law (or any country’s law) overruling conduct that is legal in other countries.
Several rights organizations, including Human Rights Watch, the B.C. Civil Liberties Association, and the Electronic Frontier Foundation (EFF) intervened in the case. Following the ruling the EFF wrote:
The ruling largely sidesteps the question of whether such a global order would violate foreign law or intrude on Internet users’ free speech rights. Instead, the court focused on whether or not Google, as a private actor, could legally choose to take down speech and whether that would violate foreign law. This framing results in Google being ordered to remove speech under Canadian law even if no court in the United States could issue a similar order.
Nonprofit trade organization Music Canada applauded the ruling, seeing it as a statement on creators’ rights. The president of Music Canada, Graham Henderson, said, “This is welcome news for creators of all stripes who rely on the internet as their primary market and for whom illegal online activity can instantly wipe out careers and destroy investment in new releases.”
Google cannot appeal the Supreme Court ruling. A spokesperson for the company told CBC News it is “reviewing the court’s findings and evaluating our next steps.”
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