Did a U.S. Court Just Disrespect the Supreme Court of Canada’s Global De-Indexing Decision?
November 3, 2017
By R. Scott MacKendrick, Catherine Lovrics, and Tamara Céline Winegust
This summer, the Supreme Court of Canada upheld an order requiring Google to de-index websites globally, not just in Canada. The operators of the sites had misappropriated confidential information, and misled consumers into believing the products they were buying on their sites were Equustek’s products. Equustek obtained Court orders to address the misappropriation and misleading, but the operators of the websites refused to comply with Court orders and carried on. Equustek asked Google to de-index the sites. Google agreed to help, and de-indexed the sites in Canada, but not globally. Equustek sought a Court order in Canada to require Google to de-index the sites globally. Google resisted, and the case ultimately went before the Supreme Court of Canada, where the Court found “[t]he problem … is occurring online and globally. 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.”
The Supreme Court’s decision has been praised by many as practical. It signalled that justice is available on the Internet, without requiring legal proceedings in every country where a website may be available. It also signalled that key players providing access to the Internet, and services to enable people around the world to access websites etc. can be appealed to help remedy a violation globally. The decision has been criticized by others, however, who have a valid fear that it could create a precedent to allow an end run around laws of certain countries, exploiting conflict of laws.
Yesterday, a United States District Court in California issued an order that effectively says that the Supreme Court of Canada did not have the right to order Google to de-index websites globally, or at least in the U.S. The Court granted Google’s request for relief against enforcement of the Supreme Court of Canada’s order to de-index certain websites on a worldwide basis.
The decision turns on safe harbour given to Google and other entities under U.S. law. Disappointingly, there was no detailed discussion of the principles of international comity, conflict of laws, the importance of recognizing foreign judgments, or the reality of the Internet, and Google’s role in that reality.
It should be noted that the Supreme Court of Canada’s decision clearly had extra-territorial reach, thereby sidestepping the necessity to enforce the order in foreign courts. This is the very reason the decision has been praised, but also is the root of the concern related to conflict of laws. It is hoped a more detailed review of the principles and reality addressed in the Supreme Court of Canada’s decision might occur in the decision to issue from the trial on the merits to follow.
Google brought the motion in the United States District Court for the Northern District of California following the Supreme Court of Canada’s decision earlier this year in Google, Inc. v Equustek Solutions Inc., 2017 SCC 3. The Supreme Court’s decision upheld a decision from the British Columbia Court of Appeals (2015 BCCA 265), and thereby, the decision of a lower BC court (2014 BCSC 1063), requiring Google, a non-party to the underlying infringement case, to de-index from Google’s worldwide search results, webpages advertising the sale of alleged infringing network interface hardware. Bereskin & Parr's article on the Supreme Court of Canada’s decision is available here.
Google’s motion in the U.S. District Court was unopposed. At the motion, Google argued the Canadian order should be unenforceable in the United States because it directly conflicts with U.S. constitutional right of freedom of speech, is contrary to U.S. legislation that provides immunity for interactive service providers (Communications Decency Act, 47 USC §230), and violates principles of international comity. Of note, Google raised similar, but rejected, arguments in respect of freedom of speech, and international comity before the Supreme Court of Canada.
The U.S. Court based its decision on the U.S. legislation that immunizes providers of interactive computer services against liability arising from content created by third parties, observing the legislation was enacted to address the threat that tort-based lawsuits pose to freedom of speech on the Internet, and particularly to companies that serve as intermediaries for other parties’ content. The Court found Google satisfied all three elements required to claim the benefit of the immunity: (1) Google “provided an interactive computer service” (i.e., its search engine); (2) the information Google was required to de-index was “provided by another information content provider” (i.e., the alleged infringer); and (3) the Canadian order would hold Google liable as the “publisher or speaker of that information”.
The U.S. Court noted the Canadian Order treated Google as the content “publisher”. The Court effectively disagreed, noting Google does not “provide” the information in its search results: “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 [of the Communications Decency Act]”.
In granting the Order, the U.S. Court also concluded that upholding the Canadian Order in the United States would deprive Google of the benefits of U.S. federal law, and the public interest is to not restrict freedom of speech on the Internet: “The Canadian order would eliminate Section 230 immunity for service providers that link to third-party websites. 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”.
The U.S. Court’s November 2, 2017 Order is preliminary, and a full trial on the merits is still required to make this order permanent. At the moment, however, it would appear Google has relief from the requirement to de-index the websites identified in the Canadian Order—at least for Google’s U.S. operations. It is still open whether Google will approach other courts, including potentially the British Columbia courts, for similar orders relieving them of their obligations. The Supreme Court of Canada seemed to invite Google to request such relief: “If Google has evidence that complying with [the Canadian] injunction would require it to violate the laws of another jurisdiction, including interfering with freedom of expression, it is always free to apply to the British Columbia courts to vary the interlocutory order accordingly”.
It will specifically be interesting to see if Google applies to the B.C courts to vary the de-indexing Order to carve-out enforcement of the Order in the U.S. It also remains to be seen whether the B.C. Court will oblige on the basis of the U.S. District Court’s Order.
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