On July 24, 2017, Google Inc. filed a suit in the US District Court for the Northern District of California, seeking to block enforcement in the US of the worldwide interlocutory injunction (the “Canadian Order”) that was recently upheld by the Supreme Court of Canada. The Internet giant, asserting its role as an “innocent bystander”, claims in its suit that the Canadian Order limits the information an American company (i.e. Google) can provide to individuals inside the US, thereby violating US law.
Last month, the Supreme Court of Canada released its landmark decision in Google Inc v Equustek Solutions Inc. The decision upheld the lower court’s interlocutory injunction against Google. The injunction ordered Google to de-index its global search engine results that reference websites of Datalink Technology Getaways Inc. and Datalink Technologies Getaways LLC, the defendants in an action brought by Equustek Solutions Inc., used to sell allegedly infringing products. The Supreme Court of Canada held that upholding the worldwide injunction was equitable under the circumstances of the case.
The Supreme Court addressed a number of issues in its decision, including finding that the worldwide injunction does not engage freedom of expression concerns. Furthermore, the Supreme Court dismissed the argument that Google’s compliance with the Canadian Order would violate laws in foreign jurisdictions, characterising the possibility as “theoretical” given the lack of evidence to suggest otherwise.
Google’s Suit in the US District Court for the Northern District of California
Google advances three causes of action to restrict the enforcement of the Canadian Order in the US.
First, it claims that the Canadian Order violates the First Amendment to the US Constitution dealing with freedom of speech. Google argued that Internet search results are protected speech under the First Amendment and that the requirement to de-index global search engine results offends this protection. Google’s claim is that the websites at issue remain a matter of public record that Internet users can still access using other search engines or by accessing the website URL directly in a web browser.
Second, Google argues that the Canadian Order violates the Communications Decency Act (47 USC § 230, the “CDA”) that provides legal immunity to interactive computer service providers for content created by third parties.
Third, Google states that the Canadian Order violates the principle of international comity – the principle that “each country is the master of its own territory” – by enforcing a Canadian judgment that conflicts with US domestic laws. Google argues that the Canadian Order is inconsistent with comity, particularly because the Canadian plaintiff did not establish any violation of its rights under US law.
Google alleges that the Canadian Order is “repugnant” to US public policy surrounding the First Amendment and the CDA.
Google maintains that it, alone, is not the Internet, suggesting that it does not have the ability to completely remove content off the Internet. Google points out that the Canadian plaintiff has not, to date, sought similar court orders against other search engines, such as Yahoo or Bing, through which the webpages containing the infringing products are still accessible.
Google stated that it will, for now, comply with the Canadian Order until the US District Court renders its judgment.
For more information on the case, see our previous E-TIPS® newsletter.