B.C. court dismisses Google case in Equustek

A British Columbia court said it will not set aside or change a provincial court decision to force Alphabet Inc. to remove an alleged bad actor from its search results, pointing to weak new evidence brought by Google that experts say made for an unsurprising decision. “It is less likely a Canadian court will avoid making these orders,” Barry Sookman, a lawyer with McCarthy Tétrault LLP, said in an email of the ruling’s fallout. He added in a blog post it’s a significant decision that reaffirms a Canadian court’s jurisdiction "to protect the integrity of their own processes through orders directed to parties over whom they have personal jurisdiction." Sookman previously told The Wire Report that the California order was made on legally-shaky ground, which would be heavily scrutinized in future cases. The American order came in response to Canada’s highest court upholding a B.C. court’s decision to order Google in 2014 to scrub its index of Datalink Technology Gateway Inc. products, in response to a complaint from Equustek Solutions Inc. “Had the court ruled otherwise,” he said in the blog post, “it would have had even more international significance as it would have provided Google and other large U.S. social media companies with a road map as to how to evade orders of Canadian, and perhaps other, non-U.S. courts.” Sookman represented rights holders, such as Music Canada, as intervenor at the Supreme Court of Canada in the case. Judge Nathan Smith of the Supreme Court of British Columbia handed down the decision, dated Monday, a little over a month after Google filed a claim to have the B.C. court relook at the de-indexing order. The Canadian courts recognized that Google had the right to challenge the order if it could establish that the worldwide delisting order violated the laws of another jurisdiction. Google then obtained an order from a California court making the Canadian decision unenforceable in the United States. But in his decision, Smith did not see the California order as evidence of a violation. “The U.S. decision does not establish that the injunction requires Google to violate American law,” the decision said. “That would be the case if, for example, the Datalink Defendants obtained an order from a U.S. court requiring Google to link to their websites. But there is no suggestion that any U.S. law prohibits Google from de-indexing those websites, either in compliance with the injunction or for any other reason.” Smith said the California decision should be viewed with caution not only because Equustek didn’t defend the action, but the judge in the case “expressly declined” to rule that Google’s First Amendment rights were violated; only that Google argued its First Amendment rights were engaged because it “drives the policy underlying both the statute and the decision.” The basis for Google’s case, which helped secure the American order, was that the Canadian order violated Section 230 of the Communications Decency Act, which provides protection from liability to intermediaries for information put on the internet. But while the CDA touches on First Amendment principles, it doesn’t necessarily infringe on them. And therein lies why the decision isn’t really surprising, Allen Mendelsohn, who teaches internet law at the faculty of law at McGill University, said in a phone interview. “Just violating or not necessarily violating Section 230 does not necessarily mean that First Amendment rights have been violated. It’s sort of a nuanced legal thing, but there’s a difference there.” The American court simply did not give enough reason for the B.C. court to change its mind, Mendelsohn said. The decision went further: “Absent the injunction, Google would be free to choose whether to list those websites and the injunction restricts that choice, but injunctions frequently restrain conduct that would otherwise be prima facie lawful. 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 decision read. Sookman said in the email that the decision “recognizes the higher threshold a U.S. company will need to meet to avoid complying with a Canadian court order.” Smith also determined that some of the arguments, including issues of jurisdiction and enforceability, brought by Google in the new claim were already dealt with in the 2014 case. He said he did not find it “open to me to revisit” those issues already before three levels of court. “Where an interlocutory or interim injunction has been issued on the basis of evidence and full argument, it may be varied only where the evidence establishes a material change in the facts or circumstances that gave rise to the original order. That reconsideration has been described as an extraordinary measure on which the applicant bears a heavy burden.” The underlying trial between Equustek and the alleged infringer is currently underway in a B.C. court. Sookman, like Mendelsohn, said if Equustek triumphs, it will likely seek another order to make the current one against Google permanent, which Google may try to oppose again. — With reporting by Ahmad Hathout at ahathout@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

B.C. court dismisses Google case in Equustek

Broadcast | April 18, 2018

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B.C. court dismisses Google case in Equustek

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