British Columbia

Canada's top court backs order for Google to remove firm's website from global searches

'We have just beaten Google in the Supreme Court of Canada. It's about as good as it gets'

Mike Laanela - CBC News

June 28, 2017

The Supreme Court of B.C. granted a worldwide injunction, ordering Google to remove a company's website from Google's global search engine results. On Wednesday, the Supreme Court of Canada upheld the B.C. court's ruling. (Justin Sullivan/Getty Images)

The Supreme Court of Canada has upheld a B.C. court ruling that ordered Google to remove the website of a company from its global search results.

"The appeal is dismissed and the worldwide interlocutory injunction against Google is upheld," wrote the court in its decision issued Wednesday morning.

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The case involved the company Equustek Solutions based in Burnaby B.C., which manufacturers networking technology. Equustek had successfully sued another company for relabelling its products and passing them off as their own.

The offending company left B.C. and Google voluntarily removed hundreds of webpages from its Canadian search results on Google.ca. But the material continued to show up on Google's global search results.

So Equustek obtained a further injunction from the court ordering Google to remove the websites from its global search results.

Google reviewing decision

Google appealed and argued it was not a real party to the dispute, and that a global injunction would violate freedom of expression. The top court decision rejected that claim.

The 7-2 majority decision released Wednesday and written by Justice Rosalie Abella called Google a "determinative player" in allowing harm to Equustek.

"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," the decision reads.

"We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods."

A spokesperson for Google said the company is "reviewing the Court's findings and evaluating our next steps"

'Google is not an uncontrollable monster.' - Equustek lawyer Robbie Fleming

The lawyer for Equustek, Robbie Fleming, said the company was "thrilled" by the decision.

"My guys are a very small technology company, and we have just beaten Google in the Supreme Court of Canada. It's about as good as it gets."

Fleming said the ruling challenged the notion that "Google and other internet giants don't have to follow the same rules that everyone else does."

"Google is not an uncontrollable monster, and that's what the lesson of this case is I think."

Fleming noted that Google already complied with the injunction in 2014 while fighting it in court, and as a result Equustek had already noted an "up-tick" in business.

But he noted the case against several of the original defendants in the original trade secret lawsuit is scheduled to continue next spring in court.

Global precedent set

The decision was also welcomed by representatives of the Canadian music industry who saw it as a victory for protecting the rights of creators online.

"Today's decision confirms that online service providers cannot turn a blind eye to illegal activity that they facilitate; on the contrary, they have an affirmative duty to take steps to prevent the internet from becoming a black market," said Graham Henderson, president of Music Canada, which was an intervener.

Barry Sookman, the lawyer for Music Canada, called the case a "landmark" in international copyright protection.

"This is the first case to grant a global de-indexing order against the search engine to require it to de-index a site that is making available goods that violate copyright," said Sookman.

He said it represents an evolution of precedents already set in other countries, such as the right to be forgotten case and other local de-indexing orders.

"It is not uncommon at all for courts to take actions around trade secrets that are effective in other countries."

"Had the decision gone the other way, it would have created enormous challenges to enforcing rights on the internet," he noted.

Free expression concerns

Several high-profile rights organizations, including Human Rights Watch, the B.C. Civil Liberties Association and the Electronic Frontier Foundation (EFF), also listed themselves as interveners in the case.

Josh Paterson, with the B.C. Civil Liberties Association, said it was important that the court decision balance the impact on free expression with the commercial interests of the company.

"Here it was technical details of a product, but you could easily imagine future cases where we might be talking about copyright infringement, or other things where people in private lawsuits are wanting things to be taken down off  the internet that are more closely connected to freedom of expression.

Paterson said while the court ruled today that freedom of expression was not the central issue in this case, it still considered its implications.

But Dinah PoKempner, the general counsel of Human Rights Watch, called the ruling disappointing.

"The court presumed no one could object to delisting someone it considered an intellectual property violator," she said in a statement.

"But other countries may soon follow this example, in ways that more obviously force Google to become the world's censor. 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."

Click to show more
Noa Mendelsohn Aviv, acting Executive Director of the Canadian Civil Liberties Association, discusses why the decision could be problematic  6:04

ABOUT THE AUTHOR

Mike Laanela

Mike Laanela is an online journalist and editor with CBC News in Vancouver.

With files from Kathleen Harris
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