Supreme Court’s Google search ban could have global implications

OTTAWA — In a landmark ruling, Canada’s top court dismissed an appeal by Alphabet Inc. Wednesday and upheld a worldwide ban on search results of a company that Equustek Solutions Inc. said infringed on its products, in a move that could influence future takedown cases in other jurisdictions, experts say. It will “very likely have enormous implications around the world,” Barry Sookman, an intellectual property lawyer at McCarthy Tétrault LLP, who represented intervenors including Music Canada, told media after the decision was released. In a 7-2 decision, the Supreme Court of Canada ruled that Datalink Technologies Gateways Inc., a manufacturer of networking technology that Equustek claimed was infringing its intellectual property, should not have its products show up in results through Google’s search engine until the lawsuit against it is resolved. Citing a similar decision in England, Sookman added “this case will certainly be a precedent with wide-ranging implications across the commonwealth where similar principles are applied when assessing when to grant injunctions, so one could expect that it will be cited favourably or at least considered in courts in England, New Zealand, Australia, Singapore and other commonwealth jurisdictions.” However, while independent Internet lawyer Allen Mendelsohn said in a phone interview that he can see other jurisdictions looking at this decision and saying “maybe we can do that here,” the narrow set of circumstances through which the court made its decision may not translate into the dramatic factor some might expect. “Given the reasoning of the court, you could tell they were very much trying to limit themselves. Whether that will happen — you can certainly picture people going to court now armed with this case in totally different set of facts and saying, ‘look the Supreme Court has said you can grant these sorts of injunctions,’ … it will be interesting to see how that plays out,” Mendelsohn said. He added that people are going to have to wait and see how lower courts start applying the ruling, stating that if they do so “willy nilly,” then “we are going to have an issue.” But Sookman said the decision “deals with general principles; it deals with a particular kind of wrong,” adding the ruling does not limit the application of the test to misappropriation of trade secrets, which Datalink is accused of. “There’s no reason to think that that principle wouldn’t be applicable in other cases,” he added. This is the second major ruling against a tech giant in less than a week. On Friday, the same court decided that a privacy class action can be brought against Facebook Inc. in British Columbia rather than in California, as Facebook stipulates in its terms of service. And earlier this year, the Federal Court ordered Romania-based Globe24h.com, a website that republished Canadian court cases, to cease operating. Taken cumulatively, these three cases — Equustek, Facebook, and Globe24h — have had the impact of making the courts see the borderless nature of the Internet, Mendelsohn said. “The Internet is going to make courts see a little broader and be a little more open to the idea of issuing judgement and reasoning that recognizes and that if courts want to have any effect at all, well they’re going to have to assert some extraterritorial jurisdiction,” he said. University of Ottawa law professor Michael Geist said in a phone interview that the ruling, in concert with the Facebook decision, shows that the court is trying to ensure Canadians have local remedies against the Internet giants. But he also said that the decision may also in fact give more power to those giants by allowing them to pick and choose between the multitude of potential court orders from other jurisdictions it wants to comply with. “Once you take the position that any court anywhere can issue an order that has global reach when it comes to the Internet, effectively deciding for others what may be accessed, I think you’re opening up a major source of concern in terms of the power that ultimately falls to the intermediary,” Geist said. The original suit against Datalink was filed in April 2011. After unsuccessfully attempting to stop Datalink’s activities, a lower court order forced Google to de-index 345 specific webpages associated with Datalink. Per Google policy, it does not voluntarily de-index entire websites, the decision noted. Equustek agreed to try this approach. After Datalink circumvented the court orders by moving its content to new pages within its websites, Equustek went back to court and got the British Columbia Superior Court to order Google to remove all webpages and sites worldwide associated with Datalink, with the province’s appeal court upholding that lower court decision. Google, as a non-party in the proceeding, then appealed to the highest court. During a December hearing, Google’s counsel argued in front of the Supreme Court that if the court ruled against the search engine, then it would impede its rights to freedom of expression and its ability to deliver a comprehensive search index. It also argued that the precedent set by such a decision would mean other parties would bring similar actions against it, further diminishing its ability to do its job. The court ruled in Wednesday’s decision that it didn’t see freedom of expression issues “being engaged in any way that tips the balance of convenience towards Google in this case.” “The order made against Google is a very limited ancillary order designed to ensure that the plaintiffs’ core rights are respected,” one Supreme Court justice concluded. “This is not an order to remove speech that, on its face, engages freedom of expression values, it is an order to de-index websites that are in violation of several court orders,” the court noted further. “We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.” Josh Paterson, executive director of the British Columbia Civil Liberties Association (BCCLA), which intervened in the case, said in a phone interview that the organization is pleased that the Supreme Court at least took into consideration freedom of expression in its decision and “we hope that’ll provide direction and guidance to lower courts.” “Datalink is only able to survive — at the expense of Equustek’s survival — on Google’s search engine which directs potential customers to its websites,” the decision added. “In other words, Google is how Datalink has been able to continue harming Equustek in defiance of several court orders.” Despite not being liable for this harm, the court ruled that the search giant is a “determinative player in allowing the harm to occur.” The court also noted the decision would mitigate the harm on Equustek and the interlocutory injunction is the “only way, in fact, to preserve” the company itself pending the resolution of its lawsuit against Datalink. The dissenting justices argued the decision is a permanent, not interlocutory, ban. In a Wednesday press release, Music Canada applauded the ruling. “Today’s decision confirms that online service providers cannot turn a blind eye to illegal activity that they facilitate; on the contrary, they have an affirmative duty to take steps to prevent the Internet from becoming a black market,” Music Canada’s president and CEO Graham Henderson said in the release. He added the decision is welcomed by creators who rely on the Internet as their primary market and where illegal online activity “can instantly wipe out careers.” But Internet advocacy organization OpenMedia said in a press release the “disappointing” decision could have far-reaching implications for online free expression and citizens’ rights to access information and express themselves freely. It also noted that the case could lead to a “domino effect, where foreign governments and commercial entities justify censorship of search results by pointing to the precedent set in Canada.” — With reporting by Ahmad Hathout at ahathout@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Supreme Court’s Google search ban could have global implications

News | June 28, 2017

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Supreme Court’s Google search ban could have global implications

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