Worldwide deindex content of a website
In the matter of Google Inc. v. Equustek Solutions Inc. case, the Supreme Court of Canada on June 28, 2017 has dismissed the appeal of Google against an interlocutory injunction issued by the Court of Appeal of British Columbia that ordered Google to deindex worldwide Datalink’s website to cease irreparable harm to Equustek.
The case stems from an underlying dispute between Equustek and Datalink over intellectual property infringement that led to several Court orders against Datalink to cease selling pirated products online.
A small tech company specialized in complex communication products
Equustek Solutions Inc. is a small technology company based in British Columbia. It is specialized in manufacturing and design of gateways, bridges and custom protocol conversion communication products.
They provide from design to production with industrial automation solutions and services in order to meet integrators and manufacturers’ communication needs. Their networking devices make complex industrial equipment made by manufacturer able to communicate with each other.
One of their distributors is well-acquainted with their products
To deliver their products all over the world, they can count on distributors. One of them is Datalink but it would be more appropriate to say, it was. In fact, the distribution agreement between the two companies has been interrupted since Equustek made itself convinced that Datalink instead of delivering was actually relabeling and reselling an Equustek’s product as its own.
Moreover, they are ready to swear that their trade secrets, the know-how and many confidential information have been captured by Datalink and that they are using them for their commercial purpose and benefits. Datalink would have been creating a product competing with Equustek, increasing its sales and decreasing the competitor’s ones with maneuvers to attract customers as reducing prices.
Equustek suffers an irreparable damage from the online selling of the pirated product
Equustek tries to impose a stop to Datalink misconduct by judicial means. Datalink, indeed, keeps making business. They do not run a physical store anymore and launch their distribution online from an unknown geographical location. As it happens with almost every item sold online, Google makes things easier for Datalink indexing their website to return their products to shopping queries. But Equustek’s revenge goes through a judicial order requesting Google to remove Datalink webpages from its domain.
Google refuses to deindex worldwide the Datalink’s domain
In response, Datalink moves the content into a different location of the site while Google deindex content only from its Canadian domain. It means that if a Canadian user searches online from Google home page, Google detects his Canadian IP address, redirect him right to google.ca and blocks Datalink’s results.
But, if a Canadian user access Google with a specific URL typing, for example, google.fr, and search online from Google France home page, Datalink’s results would be shown.
Google appeals against the Court of British Columbia’s interlocutory injunction
Equustek sues Datalink’s principal and affiliates for misappropriation of intellectual property in 2011 and files interlocutory injunctions. The trial court grants orders against Datalink. Equustek sought a pre-trial order for Google to remove all of Datalink’s websites. The trial court grants the interlocutory injunction. Google appeals to the Supreme Court of Canada the Court of Appeals of British Columbia’s decision.
Google argues that the order is not just or equitable because it is a non-party
Google Inc. as the appellant states that they only comply with orders by removing specific webpages not entire websites and that Supreme Court of British Columbia does not have jurisdiction to grant injunction with extraterritorial effect. Then, it argues that as a non-party of the trial, Google should not be ordered with interlocutory injunction and that it has permanent effects so that the trial test must encounter higher burdens.
Association for civil rights sought to defend freedom of expression
Equustek Solutions Inc., Robert Angus and Clarma Enterprises Inc. as respondents for requesting Google to deindex entire Datalink website for unlawful use and sale of its intellectual property through Internet. Several interveners addressed the order.
The Supreme Court dismisses the appeal because the three-factor test is addressed
The Supreme Court dismisses the appeal of Google with costs in this Court and in the Court of Appeal for British Columbia. Within an entirely jurisprudencial frame, the Supreme Court recognizes that a test for granting an interlocutory injunction against Google has been met in this case. In fact, the injunctions are equitable remedies exposed to unlimited powers of courts with equitable jurisdiction and readily enforceable until trial.
Their effects are to preserve effective relief until the case is ultimately heard on the merits.
Serious issue, risk of harm and convenience of the order as the three factors to be meet
Three elements should be met to grant an interlocutory injunction: a serious issue to be tried; the risk for the applicant to suffer irreparable harm and the convenience of granting the interlocutory injunction.
The first two elements are not disputed by the appellant because Google itself acknowledge Equustek is suffering irreparable harm from Datalink’s sale of its product thorough internet.
Google disputes the convenience of granting the interlocutory injunction
As to the third, Google argues that the injunction is not necessary neither effective to prevent the harm and that it should not be applied to a non-party of the trial, set between Equustek and Datalink. At least, it argues that freedom of expression would be threatened by the order.
The Court states that injunctive order can be issued against non-party should the Court discretionally repute the order to be convenient and that all persons having notice of the order are bound by injunctions. Everyone must obey it and is subject to conviction and punishment in case of violation for obstruction of the course of justice.
The Court states that everyone must obey to injunctions for justice’s sake
In this case, it is necessary that Google cooperates to prevent Datalink to defy court orders and do irreparable harm to Equustek, ceasing to facilitate selling products that cause harm.
As to the impropriety of British Columbia courts issuing an interlocutory injunction with extraterritorial effect, Google argues that the injunction should be limited to Canada domain alone. Jurisprudence leads to the conclusion that where it is necessary to ensure the injunction’s effectiveness, the court can grant an injunction enjoining that person’s conduct anywhere in the world.
The order can be globally applied to reach its effectiveness
In this case, the product is sold by Datalink all over the world thanks to search results generated by any of Google’s websites worldwide. Internet, as the Court outlines, has no borders so the effectiveness of the order is granted only by a global application.
Should the order be applied only within Canada, purchasers abroad would continue to find Datalink’s product in breach of the court’s order which had prohibited Datalink from carrying on business on the Internet.
No violation of foreign intellectual property rights with a worldwide order’s effect
In addition to that, the Court states, intellectual property rights are recognized by most countries, whose laws prohibited the selling of pirated products. This implies that such an order could easily be obtained in a foreign jurisdiction without violation of international comity or foreign sensibilities over freedom of expression, because the goal of the order is not to remove speech but only to de-index websites that are in violation of several court orders.
The freedom of expression is not even a circumstance of this case
The Court finds that even if the order would have engaged freedom of expression issues, they would have been counterbalanced and outweighed by the need to prevent an irreparable harm and the inexistence of any inconvenience or expense for Google, which is often asked to deindex content that allegedly infringes copyright and users’ privacy.
The decision is held by the majority of the magistrates
The decision is issued by the majority of the Supreme Court of Canada. They explain that the order at issue is an interlocutory injunction with temporary effects that fully met the three-factor test disposed to assess whether it is just and equitable. Not the same opinion of the two dissenting judges that argues in favor of Google.
Dissenting judges pushed for disapplication of the order to a non-party
They outline that the interlocutory injunction is actually a permanent injunction as to its effects, since deindexing content is not reversible. This should lead to a different test with higher burden than the three-factors. Indeed, finding Google’s arguments reasonable, they dissent from the decision to apply the order to an innocent third-party without any role in the alleged Datalink’s offense, plus it would require an ongoing court supervision with use of public’s resources.
Several association of civil rights where admitted addressing the order as interveners being arised the freedom of expression issues.
Google again as a non-party of a trial for freedom of expression issues
A Spanish citizen files an action against a regional newspaper for publishing a story telling a criminal offence where he was involved a long ago. The action is brought against Google too, having indexed and published the content through its search results.
The freedom of expression was at issue with the right to make people know potentially violated by the restrictive order to deindex the content and remove the story from the website. While Google’s role is dismissed from the trial, the judge grants the injunction only against the newspaper, that is ordered to publish more accurate information.