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Google’s End Run on the Canadian Supreme Court

4 December 2017

From Hugh Stephens Blog:

Google has successfully convinced a judge in the tech industry-friendly US District Court of Northern California (covering Silicon Valley naturally) to issue a temporary injunction nullifying the enforceability in the United States of an order from a Canadian provincial court in British Columbia (BC), upheld on appeal to the Supreme Court of Canada (SCC), to delist from its global search results all references to Datalink Technologies Gateways and its counterfeit product, an internet router called the GW1000. Datalink was found by the BC court to have infringed the copyright and stolen trade secrets from Equustek, a BC company, and passed off Equustek’s products as its own.

Google agreed to block search results in Google.ca but refused to do so in its global search results until ordered to do so by the BC Supreme Court, a decision upheld by the Supreme Court of Canada. After losing its SCC appeal, Google then sought an injunction in the US blocking the enforceability of the SCC order in the US. Equustek did not appear in the US to oppose the request for injunction, arguing only that Google’s application was “unnecessary” since it had never sought to have the order enforced in the US. The global de-indexing order by the BC Court was designed to deter global sales of the infringing products but also to deter Canadians from going around Google.ca to access the offending websites through other Google domains. On this point, the Court said,

“…although Google has a website for each country to which searches made within that country default, users can override that default and access other country’s Google websites. For example, even if the defendants’ websites were blocked from searches conducted through http://www.google.ca, Canadian users can go to http://www.google.co.uk or http://www.google.fr and obtain results including the defendants’ websites.”

In seeking the injunction in the US, Google argued that the Canadian order violated freedom of expression (First Amendment of the US Constitution) and that it was protected from such an order by virtue of immunity provided to internet intermediaries through Section 230 of the Communications Decency Act (CDA), and further that the Canadian order was contrary to “international comity” (i.e. the respect for one country for the legal jurisdiction of another). The judge granted the temporary injunction on the basis of Google’s status as a neutral intermediary under Section 230 but did not address the other arguments.

. . . .

There are clearly arguments on both sides of this, and Google is far from being out of the legal woods. One result of these legal shenanigans is that we now have conflicting court interpretations, an outcome that some, such as Michael Geist who had opposed the SCC decision, have decried as leading to legal uncertainty and protracted litigation. This is probably inevitable in a borderless internet where intermediaries like Google will argue that they cannot be forced to obey national law in one jurisdiction (e.g. Canada, EU—will the US be next?) because to do so might conflict with interpretation of national law elsewhere. In other words, Google would be effectively beyond the law.

Link to the rest at Hugh Stephens Blog

Copyright/Intellectual Property, Non-US

14 Comments to “Google’s End Run on the Canadian Supreme Court”

  1. That is one point of view.
    Another is that borders exist for a reason and Canadian law ends at the border…
    …until Canada is able and willing to send covert infiltration teams to enforce their law in SiliValley. 🙂

  2. I’m sorry, but how is this an end run around anything?

    Should the US Supreme Court be able to tell Canadian companies what they can and cannot do in Canada?

  3. In other words, Google would be effectively beyond the law.

    When operating in the US, Google will indeed be beyond Chinese law.

  4. In other words, Google would be effectively beyond the law.

    No, it won’t. Google will be bound by the law within a given jurisdiction. Otherwise, Google will have to apply Chinese censorship to Hawaii. That is intolerable.

    • I did find it interesting that the OP couldn’t flip it over and see how CSS getting away with that order would actually hurt them more than help.

      I saw his reply to you; I pointed out Google ‘had’ to play the counter game, otherwise it was the thin wedge letting other countries dictate what all other site could put up.

      • Most nations don’t agree with the US freedom of speech and press in the First Amendment. They would be delighted to trim it back if they can. When something is banned in their country, they don’t want their citizens simply looking over the border to read the offending material.

        This is far more than an end run. It’s a rejection of the idea that Burma can control the flow of information in the US.

        • Which as I said was the reason Google ‘had to’ fight it.

        • Totally agree with Google. I love you, Canada, but stay out of my right to free speech and I won’t criticize that you sell milk in bags. Savagery.

          There are quite a few people within the US that would like to restrict freedom of speech if you disagree with them. And when that approach fails, they describe them as failing and call people who dare to criticize them “enemies.” Fortunately, their tiny little hands make them incapable of writing anything longer than 140 characters.

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