Go Global @ Home: Supreme Court of Canada Confirms Global Order to Remove Internet Content in Google Inc. v. Equustek Solutions Inc.
June 28, 2017
By David Fraser, at McInnes Cooper
On June 28, 2017, the Supreme Court of Canada confirmed a Canadian court can issue an interlocutory injunction (an order requiring an entity or person to stop doing something pending a trial) requiring the global removal of content from the Internet. The Court’s decision in Google Inc. v. Equustek Solutions Inc., combined with its June 23, 2017 decision in Douez v. Facebook, Inc., illustrates the increasing awareness of courts around the world of the Internet’s inherently global nature, and their increasing willingness to take jurisdiction in cases that cross borders. The Court is not hesitating to apply existing legal principles to online business. And companies doing business globally, particularly online, need to ensure their legal risk assessment and management strategies reflect this trend. McInnes Cooper’s David Fraser represented Intervenor Wikimedia Foundation throughout.
A small B.C. technology company (techco) sued a distributor, claiming it re‑labelled a product and passed it off as its own; the distributor also acquired techco’s confidential information and trade secrets and used them to design and manufacture a competing product. The defendant eventually abandoned the proceedings and left B.C. The court ordered the defendant not to sell the inventory or use techco’s intellectual property – but the defendant continues to carry on business from an unknown location, selling the product to customers worldwide on its websites. Techco applied to the court for a worldwide order against U.S.-based Google Inc. requiring it to remove links to the offending products from all of Google’s sites. Google opposed the application, arguing if such an order were appropriate, it should be confined to links appearing on google.ca not worldwide. Techco also sought to have Google remove entire websites from Google’s results, not just links with the specific products. Techco obtained the order. Google appealed it to the Appeal Court, but the Court upheld the order; Google further appealed to the Supreme Court of Canada – where the Court again upheld the order.
Connectivity. The B.C. trial court had decided Google has sufficient connections to B.C. to be within its jurisdiction. Google didn’t appeal this decision, so this wasn’t an issue the Supreme Court of Canada faced.
Go Global @ home. The Court confirmed the usual legal test for interlocutory injunctions (an order requiring a party to stop doing something pending a trial) applies: is there a serious issue (Google acknowledged there was); is the party seeking the injunction suffering “irreparable harm”; and does the balance of convenience favour granting the injunction. The ultimate question is whether it’s “just and equitable” for the Court to make the order – in this case, to make a global order to remove internet content – and the Court decided it was. While much attention was focused on the fact there is little precedent for global court orders to take down “content”, the Court looked at a large body of decisions supporting the authority of Canadian courts to make orders with global effects. These include “Mareva” injunctions (an injunction that freezes a defendant’s assets pending a court’s determination of a lawsuit) and injunctions against third parties ordering them to stop selling particular merchandise globally. The Court also noted that non-parties to a lawsuit can be – and often are – subject to court orders, such as “Norwich orders” that require an innocent non-party to disclose documents or information relevant to the lawsuit. The Court showed little sympathy for the effort compliance with the order would involve from Google, particularly because the subject matter is a moving target with the “bad guys” continually setting up new sites: Google already has mechanisms to remove problematic content, such as child pornography and hate speech, from its indices.
No Slipping. The Court limited its decision to trade secrets, noting most countries recognize the underlying intellectual property rights at issue and would view the selling of the pirated products as a legal wrong. Google and a number of interveners cautioned the Court about the precedent the Court’s decision might establish around the requirement to remove Internet content, like “embarrassing” content, in light of Europe’s “right to be forgotten”. The Court observed that in this case, focused on trade secrets, such freedom of expression concerns are more theoretical than practical but specifically noted that if freedom of expression issues arise, Google can and should apply to vary the order.
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