Google Scores Injunction in Canadian Censorship Case

SAN JOSE, Calif. (CN) – A federal judge awarded Google a preliminary injunction preventing Canada’s highest court from ordering the tech giant to remove links from its worldwide search results.

U.S. District Court Judge Edward Davila granted Google a preliminary injunction late Thursday, the same day he held a hearing in which the defendant in the case – Canada-based Equustek Solutions – did not show up or file any opposition.

Google sought the injunction against Equustek’s quest for a Canadian Supreme Court order prohibiting Google from publishing search results of a rival’s goods that were found to have infringed Equustek’s copyrights.

“By forcing intermediaries to remove links to third-party material, the Canadian order undermines the policy goals of Section 230 and threatens free speech on the global internet,” Davila wrote in the 6-page order.

Section 230 of the Communications Decency Act states that third-party internet hosts, such as Google, cannot be held liable for offensive or illegal material generated by other parties.

“This is about whether a trial court in a foreign country can implement a law that is violative of the core values of this country,” Margaret Caruso, an attorney arguing on behalf of Google, said during Thursday’s hearing.

The case began in Canada, when British Columbia-based Equustek accused distributor Datalink Technology Gateways of copyright infringement, claiming Datalink relabeled Equustek’s product and sold it as its own online.

Equustek said Datalink also stole trade secrets. Instead of fighting the case, Datalink fled Canada but continued to sell its product using web domains from foreign countries.

After winning default judgment, Equustek asked Google to cease displaying links to Datalink products in its search results. Google agreed to comply, but only in the Canadian version of the search engine.

A Canadian court then ordered Google to cease publishing Datalink links in its search results globally. Google balked, claiming the order violated laws on internet censorship and established a dangerous precedent.

Google appealed to the Canadian Supreme Court, which upheld the injunction to ban Datalink search results globally.

“This is not an order to remove speech that, on its face, engages freedom of expression values,” Canadian Supreme Court Justice Rosalie Abella wrote in a ruling issued in June. “We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.”

Canada’s high court also ruled that since Google’s internet-oriented business operates free of international borders, injunctions should pertain to all aspects of its business.

“The only way to ensure the interlocutory injunction [order] attained its objective was to have it apply where Google operates – globally,” Abella wrote.

Google argued censoring search results is an explicit violation of U.S. law barring censorship of the internet and runs contrary to the free-speech provisions of the First Amendment.

Ruling in favor of Google on Friday, Davila found Google had a strong likelihood to prevail on its arguments as the case progresses.

“Google’s search engine helps users discover and access content on third-party websites, but it does not ‘provide’ that content within the meaning of Section 230,” Davila wrote.

The judge added that Datalink is the party responsible for the offensive and illegal content and as such is the party culpable for any infractions, whereas Google as a third-party host is immunized from liability.

Davila also acknowledged the likelihood of Google prevailing on First Amendment grounds.

“An injunction would also serve the public interest,” Davila wrote. “Congress recognized that free speech on the internet would be severely restricted if websites were to face tort liability for hosting user-generated content.”

Google had argued allowing the Canadian Supreme Court to dictate the policy of a U.S.-based company would set a bad precedent with far-ranging implications.

“Imagine if we got an order from North Korea that said we could not publish anything critical of Dear Leader,” Caruso told Davila during Thursday’s hearing. “Imagine if Russia doesn’t like what people are saying about Putin. It would be very dangerous to deny relief in this instance.”

Davila did not rule on the specifics of the international comity issues at stake in the case.

Caruso is with the firm Quinn Emanuel in Redwood Shores, Calif.

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