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Canada’s top court upholds worldwide injunction against Google

An employee walks at Google Canada's engineering headquarters in Waterloo, Ont., on Jan. 22, 2016.

Cole Burston/Bloomberg

The Supreme Court has ordered Google to drop a company's websites from its search engine, not just in Canada but around the world, in a landmark case on the protection of intellectual property in the Internet age.

The case was the second in five days in which the top court has aggressively staked out the jurisdiction of Canadian courts to adjudicate disputes that affect Canadians and have a global, Internet dimension.

The case features a small technology company in Burnaby, B.C., Equustek Solutions Inc., which in 2011 sued a firm it accused of stealing its trade secrets. Equustek makes networking devices that allow complex industrial equipment from different manufacturers to communicate. A B.C. court ordered the other company to cease operations, and to stop promoting itself on the Internet, but it left the province and set up in an unknown location.

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Equustek then asked Google to de-index the websites of that company, Datalink Technologies Gateways Inc., and Google refused. A B.C. judge ordered Google to do so, and the province's appeal court upheld that order. And on Wednesday, the Supreme Court of Canada ruled 7-2 that Google had been facilitating the harm to Equustek, and a global court order to remove the offending material was the only way to save Equustek.

"The problem in this case is occurring online and globally," Justice Rosalie Abella wrote for the majority in a 7-2 ruling. "The Internet has no borders – its natural habitat is global. The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates – globally." A long line of precedents has established courts' authority to enforce injunctions anywhere in the world, she wrote.

The two dissenting judges, Justice Suzanne Côté and Justice Malcolm Rowe, agreed that Canadian courts have the jurisdiction – but wrote that it was wrong to use it in this case, partly because Google had not aided or abetted any prohibited acts.

A Google spokesman said the search giant is "carefully reviewing the Court's findings and evaluating our next steps." The spokesman declined to describe what next steps are possible, but said Google has abided by the B.C. court orders and would do so with the Supreme Court order. Canadian courts can enforce their orders by using their contempt of court powers, which can include fines or jail time.

Human Rights Watch, one of 11 groups that intervened in the case, said it was disappointed by the ruling. "Other countries may soon follow this example, in ways that more obviously force Google to become the world's censor," Dinah PoKempner, the international group's general counsel, said in a statement. "If every country tries to enforce its own idea of what is proper to put on the Internet globally, we will soon have a race to the bottom where human rights will be the loser."

Last week, the Supreme Court of Canada gave the go-ahead to a class-action lawsuit in British Columbia against Facebook over the alleged violation of the privacy rights of up to 1.8 million members in the province. The 4-3 ruling came despite a clause in Facebook's terms of use that all lawsuits must be heard in California. The court said Internet companies cannot require their members to sign away their right to be heard in Canadian courts when basic rights are at stake.

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Wikimedia, which oversees the online encyclopedia Wikipedia, intervened in the Google case, telling the court it had grave concerns that the courts of other countries would try to limit what it could publish. A media consortium of 15 companies, including the Associated Press, warned that global digital platforms, including those in Canada, could be subject to virtually any state's laws. And the Attorney-General of Canada argued that Canadian courts had no jurisdiction in the case.

On the other side, the International Federation of Film Producers' Associations said the rule of law is threatened if "those who commit unlawful acts are able to flout court orders." It said courts in the United States, Spain, Germany and several other countries have made worldwide orders requiring Internet companies to assist in the enforcement of court orders.

Robbie Fleming, a Vancouver lawyer who represented Equustek, said the Supreme Court ruling is a leading international precedent, at least as important as the "right to be forgotten" – a 2014 case from the European Court of Justice establishing that individuals have the right, under certain conditions, to demand the removal of private information from search engines (the ruling was unclear as to whether it applied worldwide).

"Everyone thinks their kid is the most beautiful, and everyone thinks their case is the most important," he said, but the Supreme Court's Equustek ruling is "the first time a top-level court has expressly ordered an Internet player to take action globally."

He said that without the ruling, the company that stole his clients' business secrets could have continued violating B.C. court orders.

"If you can evade court orders as easily as this, by disappearing from a physical location and going online, that's a pretty serious challenge to the kind of normal economic and legal order we live in."

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The Supreme Court majority did not agree with civil liberties and media organizations that argued freedom of speech was at risk in the case.

"This is not an order to remove speech that, on its face, engages freedom of expression values, it is an order to de-index websites that are in violation of several court orders. We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods," Justice Abella wrote.

She said that Google already alters search results to avoid generating links to child pornography and hate speech, and that it did not say it would suffer major inconvenience.

With a report from Shane Dingman

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