Google v Equustek: Are Courts Behind the Digital Revolution?

By Isabel Dávila, JD Candidate, Osgoode Hall Law School

On June 28, 2017, the Supreme Court of Canada (SCC) released its judgement in Google Inc. v Equustek Solutions Inc. The SCC outlined what remedies are available when there is a clash between one party’s legitimate intellectual property rights (here, Equustek) and a third party’s (Google’s) role in accessing the information that is infringing the other party’s IP rights. Ultimately, the SCC’s decision in the case may set a potentially concerning precedent regarding access to information online, by enabling domestic courts to effectively censor the internet’s content.

Overview of the Case

On April 12, 2011, Equustek, a small technology company, launched an action against Datalink, a former distributor of Equustek’s products, alleging a violation of its intellectual property rights. Equustek claimed that while acting as a distributor, Datalink began to pass a product off as its own, using confidential information and trade secrets it had acquired from Equustek to design and manufacture the competing product. After having submitted its statement of defence in 2012, Datalink then abandoned the proceedings and left the province. After Equustek communicated with Google, the internet giant agreed to voluntarily de-index 345 individual web-pages from its Canadian search engine, google.ca. However, Google refused to de-index all web domains from its international search engines. Equustek then obtained an interlocutory injunction forbidding Google from displaying any part of Datalink’s websites on any of its global search results.

The SCC’s Findings

At the SCC, Google argued that the injunction was not effective in preventing irreparable harm and that a global injunction violates international comity. Google argued that the order may clash with the laws of foreign jurisdictions, particularly as it might impinge freedom of expression. The SCC dismissed both arguments, stating that, “[t]he interlocutory injunction in this case is necessary to prevent the irreparable harm that flows from Datalink carrying on business on the internet, a business which would be commercially impossible without Google’s facilitation.” The SCC further found that Google lacked evidence for its claim that complying with such an injunction would require it to violate the laws of another jurisdiction.

Shortcomings in the SCC’s Reasoning

The majority’s reasoning appears to misunderstand a key feature of search engines, specifically, their role as functional intermediaries, rather than owners of online content. The Court failed to grasp that by compelling Google to de-index certain websites, the content does not cease to exist, nor does it become inaccessible in other ways. As Google set out in its submissions, which were also recognised in the dissent of Justices Côté and Rowe, Datalink’s websites can still be found using other search engines, such as Yahoo or Bing, or through links from other websites, bookmarks, emails, social media, printed material, word-of-mouth, or other indirect means. While Google is generally a dominant search engine, the injunction is largely an ineffective remedy because Datalink’s websites are still accessible on the internet regardless of whether Google lists them or not.

Furthermore, the SCC’s decision is worryingly overbroad. While Equustek’s intellectual property claims are valid, by dismissing Google’s arguments of the possible ramifications on freedom of information and the right to freedom of speech, the majority failed to adequately address the subtle but fundamental issue of competing rights. As explained by the Electronic Frontier Foundation, an intervenor in the case, by mandating that Google de-index entire websites, the SCC is not only restricting access to Datalink’s illegal content, but also to its legitimate content which users around the globe arguably have a right to access. Imagine that an Amazon or eBay seller engaged in certain illegal practices, and Google was mandated to de-index those entire websites from its search engine. Such de-indexing would essentially block all consumers from seeing the seller’s other completely legal content or products.

New Evidence and the Future of Internet Governance

Furthermore, new evidence is available to demonstrate that the injunction would be incompatible with the laws of another jurisdiction. In November 2017, a California federal judge granted Google’s request for a preliminary injunction against the original SCC order and stated that, “[b]y forcing intermediaries to remove links to third-party material, the Canadian order undermines the policy goals […] and threatens free speech on the global internet.” It remains to be seen what Google will do with the US judgement, but it is important to understand that not all internet actors or intermediaries have access to the resources that Google does. Hopefully, future Canadian court decisions will better identify how important it is for individuals to access information online and the fundamental role of the internet in facilitating freedom of speech and expression.

ID