Canada’s Supreme Court judges argued that Canadian lower courts had the authority to grant injunctions against “any [company] in the world,” characterizing Google — which controls 70 to 75 percent of all global internet searches, as a “determinitive player.”
“The problem in this case is occurring online and globally,” Justice Rosalie Abella wrote. “The Internet has no borders — its natural habitat is global,” wrote Justice Rosalie Abella. The only way to ensure the injunction worked “was to have it apply where Google operates — globally.”
The decision stems from case Google v. Equustek, which pitted Equustek Solutions Inc., a Vancouver-based network device manufacturer, against Datalink Technologies Gateways Inc, its distributor. The former alleged that Datalink Technologies was re-labeling products and passing them off as its own, and that it acquired some of Equustek’s proprietary technology and began to manufacture copycat products.
Equustek sued Datalink for damages, but the company ducked persecution by relocating outside Canada and continued to sell its products from an undisclosed location.
Google entered the picture when Equustek requested that the search giant drop Datalink from its search engine. Google complied in part, removing — “de-indexing,” in industry parlance — more than 340 web pages. But it only de-indexed listings on Google.ca, not Google.com or its other country-specific search engines, and refused to take down Datalink’s websites.
Datalink worked around Googlee’s blockade by creating new, unblocked pages on its websites.
A subsequent British Columbia court order imposed a broader injunction on Google’s listings of Datalink’s websites anywhere in the world, which the search giant appealed. It lost that challenge on Wednesday, in front of Canada’s Supreme Court.
“This is not an order to remove speech that, on its face, engages freedom of expression values,” Justice Abella wrote. “We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.”
The court’s decision, which cannot be appealed, could have widespread implications “around the world,” lawyer Barry Sookman told The Toronto Star. “[It’s] a statement of general principles about the powers of courts, and will influence common law jurisdictions in Europe, Australia, New Zealand, Singapore, and elsewhere.”
Sookman says it might be used to prosecute parties who violate intellectual property, copyright, and trademark law.
But the ruling’s opponents, including rights organizations like Human Rights Watch, the BC Civil Liberties Association, and the Electronic Frontier Foundation (EFF), disagree, contending that it harms safeguards for free speech and access to information.
“The [decision] largely sidesteps the question of whether such a global order would violate foreign law or intrude on internet users’ free speech rights,” the EFF wrote. “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.”
A spokesperson for Google says the company is “reviewing the court’s findings” and “evaluating its next steps.”
