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US Federal Court Rejects Global Search Order

DEEPLINKS BLOG
November 3, 2017

After years of litigation in two countries, a federal court in the US has weighed in on a thorny question: Does Google US have to obey a Canadian court order requiring Google to take down information around the world, ignoring contrary rules in other jurisdictions? According to the Northern District of California, the answer is no.

The case is Google v. Equustek, and it’s part of a growing trend in which courts around the world order companies to take actions far beyond the borders those courts usually respect. It started as a simple dispute in Canada between British Columbia-based Equustek Solutions and Morgan Jack and others, known as the Datalink defendants. Equustek accuses them of selling counterfeit Equustek routers online. The defendants never appeared in court to challenge the claim, which meant that Equustek effectively won without the court ever considering whether the claim was valid.

That was all normal enough, but Equustek also argued that California-based Google facilitated access to the defendants’ sites. Although Google was not named in the lawsuit and everyone agreed that Google had done nothing wrong, it voluntarily took down specific URLs that directed users to the defendants’ products and ads under the Canadian Google.ca domains. Equustek wanted more and so it persuaded a Canadian court to order Google to delete the allegedly infringing search results from all other Google domains, including Google.com and Google.co.uk. Google appealed, but both the British Columbia Court of Appeal and the Supreme Court of Canada upheld that decision.

Here’s the thing: a court in one country has no business issuing a decision affecting the rights of citizens around the world. As EFF explained in numerous filings in the case, a global de-indexing order conflicts with rights recognized in the U.S, such as the right to access information and the protections of Section 230 of the Communications Decency Act. The Canadian order set a dangerous precedent that would be followed by others, creating a race to the bottom as courts in countries with far weaker speech protections would feel empowered to effectively edit the Internet.

Unfortunately, the Supreme Court of Canada dismissed those concerns, stating:

If Google has evidence that complying with such an 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.

Google now appears to have that evidence. In an order granting Google's request for a preliminary injunction, Judge Edward Davila held that Section 230 protected Google's activities in indexing the website at issue, and that the Canadian order was therefore unenforceable in the United States.

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.

Google can now seek a permanent injunction and take Judge Davila's order back to British Columbia and ask the court to modify the original order.

The California ruling is a ray of hope on the horizon after years of litigation, but it is far from a satisfying outcome. While we're glad to see the court in California recognize the rights afforded by Section 230 of the Communications Decency Act, most companies will not have the resources to mount this kind of international fight. If the current trend continues, many overbroad and unlawful orders will go unchallenged. Courts presented with a request for such an order must step up and require plaintiffs to meet a high burden – including proving that the requested order doesn’t run contrary to the rights of everyone it will affect.

 

 

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