Is Google “Feeling Lucky” at the Supreme Court?

 

At the Supreme Court of Canada, Google Inc. will be searching for a more favourable ruling than it got at the Court of Appeal for British Columbia in Equustek Solutions Inc. v. Google Inc. The appeal stems from the BC Supreme Court’s granting of an injunction requiring Google to de-index certain websites from its search results. Google applied for leave to appeal to the Supreme Court on September 10, 2015 after the BC court dismissed Google’s appeal in June.

 

The BC Decisions

BC Supreme Court Justice Lauri Ann Fenlon sided with Equustek Solutions Inc. in the original 2014 decision in Equustek Solutions Inc. v. Jack, issuing an injunction requiring Google to de-index Morgan Jack’s Datalink Technologies Gateways Inc. and Datalink Technologies Gateways LLC websites. Datalink had formerly been a distributor of Equustek’s industrial network hardware, but had relabelled Equustek’s products to sell as its own and had built and marketed online a competing product using illegally-obtained Equustek designs.

Google was not a party to the original action, and complied with the plaintiff’s request to voluntarily de-index 345 URLs associated with Jack’s now-virtual company (only on google.ca). However, Google did refuse to de-index the so-called “mother sites” or entire categories of URLs associated with the company. The plaintiffs contended that this was insufficient and that it led to an unsuccessful game of “whack-a-mole” wherein the defendants listed their product at new URLs faster than Google could de-index them. As a result, Equustek applied for and was granted the injunction requiring much more extensive de-indexing

 

(Google) Mapping Jurisdiction

While Google was not a party to the initial litigation, it launched the appeal to the Court of Appeal to contend that the extraterritorial interlocutory injunction granted by the lower court over-extended the court’s jurisdiction. Indeed, the issue of territorial competence was central to the appeal (which also included concerns of comity and freedom of expression). The parties agreed that the jurisdiction of the BC Supreme Court lay in s.3(e) of the Court Jurisdiction and Proceedings Transfer Act, which requires a real and substantial connection between British Columbia and the facts of the case.

Finding for the respondents, Justice Groberman stated (at paragraph 41), “The most important facts on which the injunction application is based–facts concerning the violation of trade secrets and of intellectual property rights–have a strong connection to the Province.”

Justice Groberman went on to hold that the Supreme Court Justice was correct in finding in personam jurisdiction over Google based on Google’s “doing business” in BC. The judge found Google’s active search function, advertising, and data collection (“Googlebot”) sufficient. By finding territorial competence over Google, the court is effectively allowing for more expansive powers to be exercised extraterritorially over Google.

 

Censorship or Justice?

Google unsurprisingly raises concerns at the breadth and implications of the BC courts’ findings of jurisdiction, but Justice Groberman is manifestly unsympathetic. According to the court, Google’s fears of being open to restrictive orders from other states’ courts (friendly or otherwise) derive from “the world-wide nature of Google’s business and not any defect in the law.”

It is probably true that de-indexing on the scale of “mother sites”, rather than mere URLs, is more effective as a remedy than playing “whack-a-mole” to fend off a virtual company’s infringement of (your) products. Nevertheless, it is hard to imagine that if the Supreme Court of Canada upholds the BC courts’ jurisdiction over an enormous global search engine – with a desktop search engine market share of nearly 70% – it will not cause the floodgates to open for (at least attempts at) extraterritorial motions to be brought against Google and other similar companies. The question is, can motions such as this be limited in scope to dealing with internet links to companies that break the law, or will the decision be a precedent for more aggressive restrictions in other jurisdictions? Clearly appropriation of trade secrets is a crime, but in many places, so are much less clear-cut issues.

Google is by no means the only company with paid local advertising, active search functions, or data collection abilities. Nor is it the only site capable of listing links to potentially illegal activities. An action like this one is not limited to Google, and it is not limited to being issued by Canadian courts. As such, the decision raises fears in some corners that a door has been opened for courts to regulate speech outside their jurisdiction. As the Electronic Frontier Foundation (EFF) submitted in their factum, the injunction would likely infringe on the American constitutional right to free speech (which includes internet search results).

According to the EFF, the ruling “lays the groundwork for nations with authoritarian restrictions on speech to also impose their own rules on the global Internet—even if those rules conflict with the laws of other nations.” The BC courts were not unaware of the issue, but relied on the limited temporal nature and ability to vary interlocutory orders as a safeguard to free speech. It will be up to the Supreme Court, if it chooses to back the lower courts, to emphasize the scope and limitations of such orders, especially when they concern extraterritorial requirements. It remains to be seen, then, if fighting counterfeit GW1000 networking devices opens the door to greater judicial control over the internet.

 

Sebastian Beck-Watt is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School

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