Google appeal of worldwide injunction headed to Supreme Court

The Supreme Court of Canada has agreed to hear Google's appeal of a worldwide injunction which critics warn could turn B.C. into a destination for 'censorship tourism'.

The tech giant is challenging a B.C. Supreme Court ruling made in relation to a Burnaby-based company's bid to stop another firm from profiting from the sales of stolen technology.

A game of whack-a-mole

Equustek Solutions has spent years in court, obtaining numerous court orders against Datalink Technologies.

Equustek alleges Datalink conspired with a former Equustek engineer to steal its product design and then sell it on the internet.

Google was a third party in the litigation, dragged into the case because Datalink relies on web search engines to attract potential customers.

Google voluntarily removed 345 links from search results in Canada. But Equustek accused Datalink of playing 'Whack-A-Mole' by going international with its listings.

Hence the worldwide injunction in 2014 from B.C. Supreme Court Justice Lauri Ann Fenlon.

"The courts must adapt to the reality of e-commerce with its potential for abuse by those who would take the property of others and sell it through the borderless electronic web of the internet," Fenlon wrote.

"That (injunction) is necessary ... to ensure that the defendants cannot continue to flout the court's orders."

The ruling, which was upheld by the B.C. Court of Appeal, made headlines around the world.

It's one of a growing body of legal decisions struggling to balance rights and responsibilities of technology companies operating across global boundaries.

In agreeing to hear the case, Canada's highest court defined those questions as follows:

• "Under what circumstances may a court order a search engine to block search results, having regard to the interest in access to information and freedom of expression, and what limits (either geographic or temporal) must be imposed on those orders?"
• "Do Canadian courts have the authority to block search results outside of Canada's borders?"
• "Under what circumstances, if any, is a litigant entitled to an interlocutory injunction against a non-party that is not alleged to have done anything wrong?

Lowest common-denominator law

Observers say the court will have to balance a company's duty to one locally aggrieved plaintiff in relation to the millions of law-abiding customers in other parts of the world.

European courts have ruled that Google has to give citizens the so-called 'right-to-be-forgotten': forcing the search engine to remove old, irrelevant links about people on request. Should Canadians have the same right?

Just this week, Apple CEO Tim Cook vowed to fight an order which would force the company to open the iPhone of one of the shooters who killed 14 people in San Bernadino, Calif. last December.

Apple says it has complied with requests to help the FBI, but says the courts shouldn't force the company to build technology which could have global privacy implications.

The San Francisco-based Electronic Frontier Foundation intervened in the Equustek case along with the Canadian Civil Liberties Association. They argued the worldwide injunction could lead to lowest-common denominator law, where technology companies like Google are forced to respond to restrictive judgments from courts in countries like Saudi Arabia.

One Washington-based technology writer suggested B.C. could become a destination for 'censorship tourism' — where people would travel from other countries with the specific goal of obtaining worldwide rulings.

Hysteria vs reality

But Equustek lawyer Robbie Fleming has characterized that reaction as hysteria.

He wouldn't comment on the issue ahead of the Supreme Court of Canada hearing, but spoke with CBC following the 2015 B.C. Court of Appeal decision.

At that time, Fleming said the case was not about local morality, but about well-established rules of international intellectual property.

Fleming says those laws are similar country to country, and the worldwide injunction is aimed at protecting his client's rightful claim to the profits arising from their property.

The appeal court ruling agreed, noting the narrow focus of the issue which was actually at play in the Equustek case, as opposed to the greater fears raised by the intervenors.

"There is no evidence that the websites in question have ever been used for lawful purposes, nor is there any reason to believe that the domain names are in any way uniquely suitable for any sort of expression other than the marketing of the illegal product," the ruling said.

"Of course, if the character of the websites changes, it is always open to the defendants or others to seek a variation of the injunction."

Google fully complied with Fenlon's ruling after it was issued.