Over the summer, the Supreme Court of Canada released a groundbreaking decision that will have implications for any company with an online presence – and especially for technology companies involved in online activities.
The case is called Google Inc v Equustek Solutions Inc.
As a result of this decision, courts in Canada now have the authority to order companies to take down potentially illegal content from their websites anywhere in the world, even if those companies did nothing wrong.
The Google case dealt with a dispute between two tech companies, with one (Equustek) claiming that the other (Datalink) stole its intellectual property to create a competing product. Equustek went to court and obtained several orders for the other company to stop selling the counterfeit product. Datalink ignored these orders. Equustek was unable to enforce the orders, as every time it had a specific webpage shut down, Datalink would simply move the offending information to a new webpage.
Google had nothing to do with this dispute, beyond being a search engine that the public would use to find Datalink’s infringing products. Nevertheless, Equustek brought Google to court. It asked the court to order that Google de-index (i.e. remove) all of Datalink’s websites (as opposed to specific webpages) from its search engine.
Equustek also asked that this order apply not only to Google.ca, but to any search results on any Google search engine platform worldwide. Equustek was successful, with the result being that no one anywhere in the world could use Google to search for Datalink.
The Supreme Court’s decision in marks an important turning point in Canadian law. Not only does it establish that Canadian courts can order innocent third party technology companies to remove content, but it also sets the precedent that these orders can be worldwide in scope in an appropriate case. In other words, Canadian courts can now impact the websites of choice for internet users in countries across the globe.
The Supreme Court justified this new, expansive power by explaining that the internet “has no borders” and that the only way for these kinds of court orders to be effective – at least in certain cases – was to have them apply “where Google operates—globally”.
The full implications of the Google case for the online technology sector remain to be seen. But at least two propositions seem clear at this point. First, the scope of the decision will reach far beyond search engines. Any “innocent” online operator indexing, hyperlinking to, or hosting third-party or user-generated content – whether by way of posts, comments, product listings, reviews, webpages, etc. – could themselves in a similar position as Google in this case.
Second, the scope of the decision is broader than web content relating to counterfeit products. It is virtually certain that plaintiffs will try to get similar types of orders in defamation or breach of privacy cases – for example, to prohibit social media websites from running searches for, or hosting, offensive or defamatory content.
That being said, so-called “Equustek” orders will not be granted easily, automatically or in every case. The plaintiff still needs to satisfy a judge that the order is necessary and proportionate. To address these issues, the growing list of companies who will find themselves the target of these orders in the future should keep a few things in mind:
1. How difficult will it be for your company to comply with such an order? Courts will consider how onerous complying these types of orders will be on a particular company. (In Google’s case, because the evidence was that it could comply with such an order with “relative ease” the Court found that this factor favored granting the order.)
2. What are the implications for freedom of expression? Courts will be more hesitant to grant these orders if the content in question falls within the ambit of free expression, which enjoys constitutional protection in Canada. This is more likely to be compelling in cases of defamation or breach of privacy, as opposed to counterfeit products. Indeed, one of the factors that the Supreme Court referred to in deciding to grant the order against Google was that freedom of expression was not “engaged in any way that tips the balance”.
3. Does the order conflict with the laws of other countries? Canadian courts will be more wary of making an order that impacts conduct in a country outside of Canada if it can be shown that it would conflict with the laws of that country. Google was unable to point to any such evidence, and so the Court found this factor favored granting the order. But the same result may not follow in every case.
Google gives plaintiffs a powerful new tool to force online technology companies to remove their content on a global scale. Companies that are the potential targets of these orders need to be aware of this brave new world – and be ready with their own tools, if and when the time comes to resist.
Carlo Di Carlo and co-author Justin Safayeni are lawyers at Stockwoods LLP, a boutique litigation firm in Toronto. They have a particular interest in how law impacts the technology sector, and an expertise in free expression issues, media law and injunctions. Justin and Carlo appeared before the Supreme Court of Canada as counsel for an intervener in the Google v. Equustek case.