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The Internet’s natural habitat is global, as is the Supreme Court of Canada’s reach

The Internet’s natural habitat is global, as is the Supreme Court of Canada’s reach

“The Internet has no borders — its natural habitat is global”.

In Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, the Supreme Court of Canada rendered a decision that will likely have far-reaching effects.

Equustek Solutions Inc. manufactures networking devices that were distributed by the Datalink group of companies. Equustek discovered that Datalink began passing off Equustek’s products as its own and selling them on the internet. Despite having obtained numerous Court orders prohibiting Datalink from selling Equustek’s products on its websites, Datalink refused to comply.

In order to stop the illegal sales by Datalink, Equustek eventually sought an interlocutory injunction to enjoin Google from displaying the Datalink websites on any of its searches worldwide. This specific order of the B.C. Supreme Court was as follows:

[17] …“Within 14 days of the date of this order, Google Inc. is to cease indexing or referencing in search results on its internet search engines the [Datalink] websites …, including all of the subpages and subdirectories of the listed websites, until the conclusion of the trial of this action or further order of this court.” [Emphasis in original]

The first instance judge justified the order on the basis that Google controls 70% to 75% of the global searches on the internet and that Datalink’s ability to sell the counterfeit products depended on customers locating its website through Google. The only way to prevent irreparable harm to Equustek was to prevent potential customers from accessing the Datalink websites from anywhere in the world.

Among other things, Google argued that it was a non-party and therefore immune to the injunction and that since the extraterritorial reach of the order raised freedom of expression concerns, the balance of convenience favoured Google.

The Supreme Court reconfirmed that injunctions can be issued against non-parties. In fact, this is already regularly ordered in the context of Norwich orders and Mareva injunctions.

On the extra-territorial issue, the Court confirmed that once in personam jurisdiction is established and where it is necessary to ensure the injunction’s effectiveness, it can grant an injunction enjoining that person’s conduct anywhere in the world. Mareva injunctions were a good example of this principle. In this case, the evidence clearly demonstrated that the order had to have worldwide effect in order to achieve the intended result. As for the balance of convenience, the Court felt it was not in Google’s favour since Google acknowledged it could easily do what was required of it under the worldwide order.

However, despite Google’s arguments and the clear implications of such an order on freedom of expression, the Supreme Court had little to say on this issue:

“[45] And while it is always important to pay respectful attention to freedom of expression concerns, particularly when dealing with the core values of another country, I do not see freedom of expression issues being engaged in any way that tips the balance of convenience towards Google in this case. As Groberman J.A. concluded:

In the case before us, there is no realistic assertion that the judge’s order will offend the sensibilities of any other nation. It has not been suggested that the order prohibiting the defendants from advertising wares that violate the intellectual property rights of the plaintiffs offends the core values of any nation. The order made against Google is a very limited ancillary order designed to ensure that the plaintiffs’ core rights are respected.

… the order in this case is an interlocutory one, and one that can be varied by the court. In the unlikely event that any jurisdiction finds the order offensive to its core values, an application could be made to the court to modify the order so as to avoid the problem.”

(…)

[48] 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. We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.”

Clearly, we can expect to see a more thorough analysis in the future when this case is invoked, as it will be, to justify the removal of speech more closely related to “freedom of expression values”.

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