11 July, 2017

Results Breakdown - Canadian Supreme Court Rules on Infringing Websites and Google Search Results

When reading this case this writer pondered what he would do in a world without Google (or search engines in general). Finding information on a web that's very close to an unrestricted space is both very useful, and can produce results you never expected, both in the good and the bad. Through the sheer power of the search engine, finding details online is quite easy, and can present an ingenius searcher with plenty of legitimate and illegitimate materials. This still poses the question: should search engines have to, or be forced to, restrict their results, to prevent the infringement of someone's rights? While this question often falls due to issues of jurisdiction, the Canadian Supreme Court endeavoured to answer it in a Canadian context only last week (with the BC Supreme Court decision having been discussed here).

The case of Google Inc. v Equustek Solutions Inc. dealt with the sale of devices that allow complex industrial equipment made by one manufacturer to communicate with complex industrial equipment made by another manufacturer. Equustek have developed, manufactured and sold such devices for some time. Former employees of Equustek, having left the company, started their own competing company, which developed and sold a similar device online, over which an injunction was granted by the Canadian courts. After a long legal battle, the respondents fled Canada and abandoned the proceedings, with Equustek subsequently pursuing Google to remove the website selling the infringing devices from their search results. Having initially received the injunction (limited only to Google.ca), Google pursued the matter further in the courts, ultimately ending up in the highest court in Canada.

What the case was all about was whether Equustek could pursue a worldwide interlocutory injunction through the Canadian courts against Google and its search results.

Initially, the Court set out the three-part test that determines whether a court should exercise its discretion to grant an interlocutory injunction: "...[1] is there a serious issue to be tried; [2] would the person applying for the injunction suffer irreparable harm if the injunction were not granted; and [3] is the balance of convenience in favour of granting the interlocutory injunction or denying it. The fundamental question is whether the granting of an injunction is just and equitable in all of the circumstances of the case".

Google agreed that there was a serious issue to be tried; however, they presented a multitude of arguments for the Court against the injunction. This included that the injunction is not necessary nor would it be effective; a third-party should not be bound by an order on another party (and therefore be subject to the injunction); and that issuing an interlocutory injunction with extraterritorial effect would be improper.


Search results - the great unknown (Source: xkcd)
Justice Abella considered that, due to the global nature of the Internet, any injunction involving multi-national, cross-border entities like Google would have to be applied globally. In short, as the majority of Google's business happens outside of Canada "...Purchasers outside Canada could easily continue purchasing from Datalink’s websites, and Canadian purchasers could easily find Datalink’s websites even if those websites were de-indexed on google.ca. Google would still be facilitating Datalink’s breach of the court’s order which had prohibited it from carrying on business on the Internet".

She also added that an interlocutory injunction, such as in this case, is therefore necessary to prevent the defendants' infringement online. Without Google's indexing of their site their business would not be feasible. Justice Abella also determined that there would be no issue with the freedom of expression, as no other nations' laws would be violated by the injunction.

The judge followed with the notion that this injunction would not affect Google's 'content neutral character', as it does not impose further monitoring obligations on the company, but merely the removal of the specified web addresses from its index. The same would not cause any undue expense on Google, which is something they already do for other illegal, more severe content online, and actively complies with DMCA notices over copyright infringement.

While the respondents' business can only thrive through Google's services, the court acknowledged that they are not responsible for the harm caused; however, Google has the power to end the harm by de-indexing the content. Ultimately, Justice Abella dismissed Google's appeal.

Two judges, Rowe and Côté, dissented from the majority's opinion, arguing that the injunction should not have been granted. In their view, the injunction's effects on Google would be final, with no recourse (unless to adjust its terms through the courts), and that Google is not a party to the dispute and should not be subjected to the injunction in question. Finally, the judges saw that the injunction is mandatory, with very little proven effect on its purpose, and the courts are presented with alternatives such as an asset freeze or injunctive relief against the ISPs preventing access to the website.

Ultimately, the case turns on the fact that it can open the floodgates for a stream of applications seeking similar injunctions, impacting both Google's business and the Canadian judicial system as a whole. The Court did leave the matter quite open, and this writer is confident that more applications will follow the decision, since, as the Court observed, Google already complies with similar obligations on a regular basis. Worldwide injunctions should not be a common weapon used, but an extraordinary one, so this writer does hope that the Canadian courts will restrict its application to only instances where they are truly needed.

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