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Canada’s Supreme Court has upheld a lower court ruling requiring Google to remove search results worldwide pointing to websites being operated by a technology company accused of pirating a rival’s intellectual property.
The ruling is sure to come as a disappointment to rights groups who have previously noted that such a decision would essentially mean that any country has the right to enforce its laws and decisions on Internet users around the world.
In a 7-2 ruling Tuesday, Canada’s highest court rejected Google’s argument that forcing removal of the links represented an extra-territorial application of Canadian law and that there were freedom of expression concerns associated with such an order.
“This is not an order to remove speech that, on its face, engages freedom of expression values,” the court said in its ruling. “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.”
The decision pertains to a closely watched dispute between Equustek Solutions, a British Columbia-based maker of industrial automation products and Datalink Technology Gateways a former distributor of Equustek products.
In a 2011 compliant Equustek alleged that Datalink, while serving as a distributor, began to re-label Equustek’s products and pass them off as its own. Equustek claimed that Datalink also acquired its trade secrets and intellectual property and was using that to make competing products.
A British Columbia court that heard the case, found Datalink had violated the law and ordered the company to stop the infringing activity. Datalink however abandoned the proceedings midway and despite being prohibited to sell the infringing products has continued to do so from an unknown location over the Web.
After Equustek’s efforts to get web-hosting providers to remove Datalink’s websites failed, the company approached Google and asked it to not to index Datalink’s websites thereby preventing the company from selling online. Google initially refused the request, but then agreed to delist about 345 Datalink webpages after Equustek produced a court order prohibiting Datalink from selling products on the Web. The company only de-indexed webpages and not websites and applied the de-indexing only to searches conducted on Google’s Canadian search domain, but not elsewhere.
When Google’s de-indexing did not prevent Datalink from simply using other webpages to sell the infringing products, or prevent Canadian users from seeing those sites on other Google search domians, Equustek asked the court for, and obtained another injunction.
This one ordered Google to de-index Datalink’s websites entirely and apply that de-indexing not just to search results within Canada but around the world. The court held that Google was facilitating Datalink in selling the pirated products and causing irreparable harm to Equustek in the process.
The Court of Appeal of British Columbia rejected Google’s subsequent appeal of the ruling prompting the Internet giant to take the case to the Canadian Supreme Court. This week’s Supreme Court ruling essentially affirmed the authority of the lower court in ordering Google to remove the search results worldwide.
“Even if it could be said that the injunction engages freedom of expression issues, this is far outweighed by the need to prevent the irreparable harm that would result from Google’s facilitating Datalink’s breach of court orders,” the opinion noted.
The Electronic Frontier Foundation (EFF), which is one of several watchdog groups to side with Google in the dispute, said the Canadian Supreme Court decision has troubling implications for free expression online.
“The Equustek decision is part of a troubling trend around the world of courts and other governmental bodies ordering that content be removed from the entirety of the Internet, not just in that country’s locale,” the EFF said in a blog. The ruling sidesteps the question of whether an order of such global scope would violate the laws of other countries or intrude on free speech rights, the EFF said.
“This framing results in Google being ordered to remove speech under Canadian law even if no court in the United States could issue a similar order,” it said.