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Google Takes Fight of Canadian Court’s ‘Censorship’ Stateside

A federal judge appeared inclined after a Thursday morning hearing to award Google a preliminary injunction in a case with major implications for the tech giant’s freedom to publish search results around the world.

SAN JOSE, Calif. (CN) – A federal judge appeared inclined after a Thursday morning hearing to award Google a preliminary injunction in a case with major implications for the tech giant’s freedom to publish search results around the world.

Google sought a preliminary injunction against Canada-based Equustek Solutions’ 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.

“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,” said Margaret Caruso, an attorney arguing on behalf of Google.

Underscoring the bizarre nature of the proceedings, no attorneys for Equustek Solutions or the Canadian court system showed up, allowing Caruso to state her case to U.S. District Judge Edward Davila unopposed.

Davila seemed receptive to Caruso’s arguments, teeing up questions about the First Amendment implications of the case and telling the lawyer at the end of the hearing: “I am going to issue an order shortly.”

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,” wrote Canadian Supreme Court Justice Rosalie Abella 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."

The Canadian 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

The Canadian Supreme Court said in its ruling that such violations of American law were “theoretical.”

Google took its fight to the United States, and on Thursday asked Davila to confirm the legal theory.

“Google now turns to this court, asking it to declare that the rights established by the First Amendment and the Communications Decency Act are not merely theoretical,” Google said in the complaint filed in July.

Google argued allowing the Canadian Supreme Court to dictate the policy of a U.S.-based company 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. “Imagine if Russia doesn’t like what people are saying about Putin. It would be very dangerous to deny relief in this instance.”

Davila indicated he is inclined to agree.

Caruso told reporters after the hearing that Google cannot appeal the decision of Canada’s high court but that a clause of the ruling says the Canadian court could revisit its decision if other national courts disagreed.

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

Follow @@MatthewCRenda
Categories / Civil Rights, International, Technology

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