Google Fights Canadian Supreme Court’s Global Takedown Order

SAN FRANCISCO (CN) — A Canadian Supreme Court ruling that ordered Google to block websites from its global search index violates the First Amendment, Google claims in a federal lawsuit filed Monday.

The Canadian Supreme Court affirmed an injunction in a 7-2 ruling on June 28, ordering Google to block the websites of a company accused of selling counterfeit routers.

“The Canadian trial court recognized that Google is an ‘innocent bystander’ to the case. Nevertheless, it issued a novel worldwide order against Google, restricting what information an American company can provide to people inside of the United States and around the world,” Google said in its 13-page complaint, to which it attached 130 pages of exhibits.

Digital civil liberties watchdog Electronic Frontier Foundation, which intervened in the case, called the Canadian ruling “a decision that has troubling implications for free expression online,” saying it could open the floodgates for court orders allowing internet censorship on a global scale.

The case began in 2011, when British Columbia-based Equustek sued a former distributor and rival business, collectively called Datalink, claiming they relabeled one of its products and tried to pass it off as their own. Equustek also claims the defendants stole its trade secrets to create new products and sell them online with misleading advertisements.

Despite court orders barring the sale of the counterfeit routers and use of Equustek’s intellectual property, Datalink continued selling the products from an undisclosed location to customers around the world.

After the British Columbia Supreme Court ordered Datalink to stop selling any product from any website, Google de-indexed 345 web pages associated with the company. But Google limited the delisting to searches conducted on (Canada) and refused to de-index entire Datalink websites.

Responding to Equuestek’s request for a global injunction, the Canadian court “issued an unprecedented order” in June 2014, directing Google to block Datalink search results across the globe, according to Google’s lawsuit.
After its request to stay that ruling was denied, Google complied with the order, delisting 33 Datalink websites in its global search results. But Datalink kept launching new websites, leading the Canadian court to issue nine more orders directing Google to block more than 75 additional websites.

“Although the Canadian order has been in effect for more than three years, many Datalink websites remain publicly available,” Google said in its lawsuit. “More than a third of the Datalink websites Google delisted are still active today.”

Google says it appears that Equustek never sought to go after the registrars and web hosts of Datalink’s websites, even though those entities could remove the enjoined content from the internet, rather than merely delist search results.

Google says it is the only search engine subject to the Canadian court’s injunction.

Writing for the majority, Canada Supreme Court Justice Rosalie Abella concluded that a court can enjoin conduct anywhere in the world to ensure that an injunction is effective and achieves its intended purpose.

“The problem in this case is occurring online and globally,” Abella wrote. “The Internet has no borders — its natural habitat is global. The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates — globally.”

In dissent, Supreme Court Justices Suzanne Cote and Malcolm Rowe wrote that the injunction has not been shown to be effective, given that Datalink’s website is still “open for business on the Internet whether Google searches list them or not.”

The dissenting justices said alternative remedies are available to Equustek, such as seeking to freeze Datalink’s assets through a French court or pursuing an injunction against the ISP providers that host Datalink’s websites.

But the majority found the inability to make Datalink comply with court orders made Google the “determinative player in allowing the harm to occur,” and that “the worldwide injunction is the only effective way to mitigate harm.”

Google says the Canadian high court’s ruling violates U.S. laws, including the First Amendment and Communications Decency Act. It seeks an injunction blocking enforcement of the Canadian order in the United States.

Google is represented by Margaret Caruso and Carolyn Homer of Quinn Emanuel Urquhart & Sullivan in Redwood Shores, California.

Equustek did not respond to an email seeking comment after business hours Monday.

In addition to Equustek Solutions, the defendants are Clarma Enterprises and Robert Angus, a professional engineer and principal of both Vancouver, B.C.-based companies, whose “last known place of residence” was also in Vancouver, according to the lawsuit.

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