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Google Inc. v. Equustek Solutions Inc.

  • Jennifer Daskal (a1)
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In Google v. Equustek, the Supreme Court of Canada ordered Google to delist all websites used by Datalink, a company that stole trade secrets from Equustek, a Canada-based information technology company. Google had agreed to do so in part, but with respect to searches that originated from google.ca only, the default browser for those in Canada. Equustek however, argued the takedowns needed to be global in order to be effective. It thus sought an injunction ordering Google to delist the allegedly infringing websites from all of Google's search engines—whether accessed from google.ca, google.com, or any other entry point. Google objected. The Canadian Supreme Court, along with the two lower Canadian courts that considered the issue, sided with Equustek (para. 54). The ruling sets up a potential showdown between Canadian and U.S. law and raises critically important questions about the appropriate geographic and substantive scope of takedown orders, the future of free speech online, and the role of intermediaries such as Google in preventing economic and other harms.

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1 Google Inc. v. Equustek Solutions Inc., [2017] 1 S.C.R. 824 (Can.).

2 I use the terms de-index and delist interchangeably to refer to act that Google was being asked to perform, namely the removal of particular webpages and websites from search results.

3 Equustek Solutions Inc. v. Jack, 2014 BCSC 1063, para. 72 (Can.).

4 Google's Notice of Motion and Motion for Preliminary Injunctive Relief at 6–20, Google LLC v. Equustek Solutions Inc., No. 5:17-CV-04207-EJD (N.D. Cal. July 27, 2017).

5 Id. at 8–9, 15.

6 Order Granting Pl. Mot. For Default Judgment and Permanent Injunctive Relief, Google LLC v. Equustek Solutions Inc., No. 5:17-CV-4207-EJD, 2017 BL 450437 (N.D. Cal. Dec. 14, 2017).

7 See 47 U.S.C. § 230(c)(1) (2018) (“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”).

8 Google LLC v. Equustek Solutions Inc., 2017 WL 5000834, at *3 (N.D. Cal. Nov. 2, 2017).

9 Id.

10 Id. at *4.

11 Equustek Solutions Inc. v. Jack, 2018 BCSC 610, para. 20 (Can.)

12 Id. at para. 30.

13 Eugene Volokh, Canadian Court Orders Google to Remove Search Results Globally, Wash. Post (June 29, 2017), at https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/29/canadian-court-orders-google-to-remove-search-results-globally (calling the ruling “potentially quite dangerous”).

14 Daphne Keller, Ominous: Canadian Court Orders Google to Remove Search Results Globally, Stan. L. Ctr Internet & Soc'y Blog (June 28, 2017), at http://cyberlaw.stanford.edu/blog/2017/06/ominous-canadian-court-orders-google-remove-search-results-globally (describing the opinion as “ominous” and raising concerns about “the message that it sends to other courts and governments”).

15 Michael Geist, Global Internet Takedown Orders Come to Canada: Supreme Court Upholds International Removal of Google Search Results, Michael Geist (June 28, 2017), at http://www.michaelgeist.ca/2017/06/global-internet-takedown-orders-come-canada-supreme-court-upholds-international-removal-google-search-results (warning of a possible parade of horribles, including a “a Chinese court order[] to remove Taiwanese sites from the index” and an “Iranian court order[] to remove gay and lesbian sites from the index”); see also Aaron Mackey, Corynne McSherry & Vera Ranieri, Top Canadian Court Permits Worldwide Internet Censorship, EFF (June 28, 2017), at https://www.eff.org/deeplinks/2017/06/top-canadian-court-permits-worldwide-internet-censorship. But see Andrew Keane Woods, No, The Canadian Supreme Court Did Not Ruin the Internet, Lawfare (July 6, 2017), at https://www.lawfareblog.com/no-canadian-supreme-court-did-not-ruin-internet.

16 See Conseil d’État [CE] [highest administrative court], July 19, 2017, 399922 (Fr.), at http://www.conseil-etat.fr/Decisions-Avis-Publications/Decisions/Selection-des-decisions-faisant-l-objet-d-une-communication-particuliere/CE-19-juillet-2017-GOOGLE-INC; see also Daskal, Jennifer, Borders and Bits, 71 Vand. L. Rev. 179 (2018).

17 Die Grünen v. Facebook Ireland Ltd., Case No. 5 R 5/17t, Decision – Procedural Outcome (Austria Court of Appeal May 5, 2017); Laurel Wamsley, Austrian Court Rules Facebook Must Delete Hate Speech, NPR (May 8, 2017), at https://www.npr.org/sections/thetwo-way/2017/05/08/527398995/austrian-court-rules-facebook-must-delete-hate-speech; Natasha Lomas, ECJ to Rule on Whether Facebook Needs to Hunt for Hate Speech, TechCrunch (Jan. 11, 2018), at https://techcrunch.com/2018/01/11/ecj-to-rule-on-whether-facebook-needs-to-hunt-for-hate-speech.

18 These operate via a rather unique notice and takedown mechanism, pursuant to which copyright holders and their agents can demand takedowns of allegedly infringing material. All service providers are required to appoint and register a particular agent to receive such demands. An individual whose work has been affected by such takedown orders can file a counter-notice, which, if not otherwise resolved, will likely lead to litigation.

19 See also Berman, Paul Schiff, Global Legal Pluralism, 80 S. Cal. L. Rev. 1155, 1159–60 (2007) (making a similar point with respect to France's case against Yahoo! over the availability of Nazi memorabilia and Holocaust denial material).

20 See Citron, Danielle Keats & Wittes, Benjamin, The Internet Will Not Break: Denying Bad Samaritans § 230 Immunity, 86 Fordham L. Rev. 401 (2017) (recognizing the CDA immunity may at times go too far).

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