On April 16, 2018, the Supreme Court of British Columbia (BCSC) in 2018 BCSC 610 dismissed Google’s application to set aside or vary the injunction ordered in Equustek Solutions Inc v Jack, 2014 BCSC 1063 (upheld on appeal 2015 BCCA 265, 2017 SCC 34). See E-TIPS® coverage here.
Google sought to remove or vary the injunction on the grounds that a material change of circumstances required a re-examination of the order. This was premised on an order Google obtained from the United States District Court in California in 2017, holding that the injunction is unlawful and unenforceable in the United States (Google LLC v Equustek Solutions Inc, 2017 WL 5000834 (ND Cal Nov 2, 2017)). See E-TIPS® coverage of the US decision here.
The BCSC found that the US decision does not establish that the injunction requires Google to violate American law. The Court found that there is no legal prohibition against Google de-indexing the Datalink websites, either in compliance with the injunction or for any other reason. Ordinarily, Google would be free to select which websites to index, and the injunction restricts this ability. However, the Court clarified that a party being restricted in its ability to exercise certain rights is not the same thing as that party being required to violate the law.
The underlying dispute between Equustek and Datalink is currently at trial in the BCSC before Justice Duncan.
Summary By: Jennifer R. Davidson