Overturn worldwide search result ban, Google asks Supreme Court

OTTAWA — Canada’s highest court heard arguments Tuesday on whether a court in Canada can order a worldwide ban on websites appearing on Alphabet Inc.’s Google search engine, with counsel for Google arguing that such a ban would infringe on its free expression rights to rank its search results and devalue the quality of its search results. The case involves Equustek Solutions Inc., the plaintiff in a case that alleges its former distributors, Datalink Technologies Gateways Inc., have been designing and selling counterfeit versions of their products. Equustek obtained injunctions against the distributors attempting to stop them from doing business online. When this didn’t deter them, Equustek sought a worldwide ban on Google showing the distributors’ website, which was granted by the Supreme Court of British Columbia and upheld by B.C.’s appeal court. The Supreme Court of Canada (SCC) granted Google leave to appeal in February. Issues in front of the court include whether the B.C. court’s reach extends beyond its jurisdiction and whether courts can prohibit search engines from showing results. But the SCC justices also wanted to know Tuesday how the ban negatively impacted Google, a non-party to this case. William McDowell, counsel for Google who opened the proceeding, argued that the ban infringes on Google’s rights to free expression by affecting its ability to employ full editorial control over how it ranks results. “Anything that impedes its ability to find relevant results, or impedes its ability to rank results ... is an interference with its exercise of freedom of expression,” he said. McDowell said the ban harms Google’s ability to get the most relevant results to a search and it interferes with its editorial function in “designing the way it has set up its map.” But the court, in trying to determine how the ban harms Google, raised instances in which Google in the United States has been subject to legislation that prohibits its ability to post “certain kinds of materials” on the Internet. “This is not an aberrational request of Google; they do this routinely,” one justice noted. McDowell, however, raised concerns about the precedent that the court could set with this ban, which he said would expose Google to more such orders and could impede its ability to deliver relevant search results. “It’s if people, instead of looking at Google as a place where you can find virtually anything, begin to think it’s a place where you can only find an incomplete map because…if this court legitimizes this, we can expect that there are all kinds of orders that can be made to remove search results,” he said. Robbie Fleming, counsel to Equustek, argued that if the business is unlawful, it is not something that should be protected. He also said there is no burden on Google to uphold the ban and the “effort required to do this is zero,” adding that Google has a “duty to assist.” McDowell denied that. “Google is the only practical option,” Fleming said. “Yes, they are an innocent non-party the obligation on them is minimal; the need for justice is very high.” Addressing a point made by McDowell, who suggested that Equustek should ask for court orders in the jurisdiction where servers that operate the websites are located or where it finds defendants, as it had in France in April, Fleming said it is impractical for an order to be brought in every jurisdiction. He suggested the solution is to arrive at a convenient forum — “the court with the real and substantial connection with the subject matter of the dispute,” which he said was B.C. in this case — to resolve all aspects of a case. — With reporting by Ahmad Hathout at ahathout@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Overturn worldwide search result ban, Google asks Supreme Court

News | December 6, 2016

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Overturn worldwide search result ban, Google asks Supreme Court

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