High Court Of Canada Cooks Google’s Goose

When you think about landmark legal rulings affecting the internet you don’t usually look to the courts of Canada. But the Supreme Court of Canada this week sent shock waves through internet legal circles by issuing an injunction against Google requiring the search engine to de-index an allegedly infringing website everywhere in the world.

The 7-2 ruling was surprising on multiple levels, not least because Google is not actually a party to the litigation that led to the injunction. More surprising still was the court’s assertion of global jurisdiction over the internet. But for Google the worst may be yet to come.

The dispute involves Equustek Solutions, a smallish Canadian technology firm that sued its former distributor, Datalink Technologies Gateway, in 2011 alleging that Datalink was relabeling some of Equustek’s products and passing them off as its own. Then, according to the suit, Datalink used confidential documents and information it had obtained from Equustek to produce and sell competing products.

The trial court ordered Datalink to stop selling Equustek’s products and to return all of Equustek’s intellectual property, but Datalink failed to comply. Instead, it pulled up stakes in British Columbia, where it had been based, and continued to do business from an undisclosed location.

Equustek then asked Google to remove Datalink’s websites from its search results, but the search giant refused unless a court ordered Datalink to stop doing business online altogether. The court issued that order and Google de-indexed hundreds of pages on Datalink’s sites although not the entire sites. And it limited the de-indexing to its Canadian domain, google.ca.

Undeterred, Datalink simply moved the products to other pages that had not been de-indexed and continued offering them for sale. At that point, Equustek sought a court order requiring Google to remove any and all Datalink websites from its search results anywhere in the world. After a series of rulings and appeals, the Supreme Court of Canada has now issued that injunction.

“The Internet has no borders — its natural habitat is global,” Justice Rosalie Abella wrote for the majority. “The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates — globally.”

How, exactly, Google is to comply with that order, and how the court intends to enforce it outside of Canada, are questions that are likely to occupy lawyers and courts around the world for many years. The Canadian high court invited Google to seek modifications of its order in jurisdictions where complying could clash with other legal or constitutional precedents, on a case-by-case basis. But others are already seizing on the ruling to revisit their own complaints about Google.

Although not strictly a case about copyright infringement, copyright owners were quick to liken Datalink’s actions — and Google’s inaction — to the sort of Whac-a-Mole they say they must play to get infringing content removed and de-indexed from the web.

“Rather than being required to send sometimes multiple thousands of notices with regard to the same site, the value of this decision is it means the entire site is removed, once and for all,” International Federation of Phonographic Industries general counsel Jo Oliver told the Toronto Globe and Mail.

Added Barry Sookman, attorney for IFPI and the Canadian Publishers’ Council, which filed briefs in the case: “It provides a practical solution to go to one jurisdiction, obtain an order against [a copyright violator] globally, and then have that order enforced by a search engine. In that respect, it creates the possibility, in appropriate cases, for global orders.”

If other courts follow the Canadian high court’s lead, Google could find itself playing a sort of legal Whac-a-Mole as it tries to fend off such global orders coming from multiple jurisdictions.

 

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