What Google’s Fight Against A Canadian Injunction Could Mean for The “Right to Be Forgotten”

Published On August 9, 2017 | By Anna Myers and Nick Jackson | General, International

When an elusive defendant disappeared from Canada amid a trade secrets case, a Canadian trial court, finding itself out of options, turned to Google to try to enforce its orders. The court issued an injunction requiring Google to remove links associated with the defendant from its search results—not only in Canada but worldwide—a decision that the Supreme Court of Canada recently affirmed.

The defendant, Datalink Technologies Gateways LLC, was accused of stealing trade secrets from another company whose products it distributed—Equustek Solutions—and also of improperly relabeling Equustek’s products and reselling them as its own. Datalink failed to comply with preliminary court orders to stop selling those products through its websites and take other corrective steps. Instead, it abandoned the jurisdiction and continued to operate its business from an unknown location.

During the dispute, Google agreed to de-index links to more than 300 pages on the defendant’s websites from its search results on google.ca. However, Google would not agree to de-list those websites entirely, and it refused to alter search results on its non-Canadian properties (such as google.com). Equustek was not satisfied and sought an injunction requiring Google to de-index the defendant’s websites worldwide, which the trial court granted. The Court of Appeal upheld the order, finding it was the only practical way to prevent Datalink from flouting the lower court’s orders.

Google then appealed to the Supreme Court of Canada, which again upheld the order. Among Google’s arguments was that as a non-party it could not be the subject of a preliminary injunction. The Court disagreed, on the grounds that Canadian law permits injunctive relief against a non-party when they are “so involved in the wrongful acts of others that they facilitate the harm, even if they themselves are not guilty of wrongdoing.” The Court also determined that such injunctions can be given worldwide effect when necessary to ensure their effectiveness: in this case, to prevent Datalink from continuing to sell infringing products outside of Canada.

While affirming the lower court, the Supreme Court noted that “[i]f Google has evidence that complying with such an injunction would require it to violate the laws of another jurisdiction, including interfering with freedom of expression, it is always free to apply to the British Columbia courts to vary the interlocutory order accordingly.” Heeding this advice, Google filed suit in the United States, arguing that the Canadian order violates its First Amendment rights, protections under the Communications Decency Act, and “principles of international comity.”

While that case proceeds, Google has been waging a similar battle against France’s data protection agency—currently pending in the European Court of Justice—over whether the “right to be forgotten” (RTBF) extends beyond EU borders. The RTBF allows individuals to request removal of personal information (or links to it) from websites when certain privacy-related standards are met. In its European case, Google argues that an extension of the RTFB’s territorial reach could induce countries with strict limitations on freedom of speech to similarly attempt to enforce those limitations worldwide—effectively disrupting other countries’ ability to balance freedom of expression and privacy for their own citizens.

While the factual posture of the two cases differs, both concern the same core question: whether third-party sites like Google can be required by one jurisdiction to remove content that is not directed to users in that jurisdiction. The outcome of the Canadian case signals one possible direction for how European orders under the RTBF could be applied to sites directed to the United States. But whether Europe adopts the same approach—or the Canadian approach survives collateral challenge in the United States—remains to be seen.

 

About The Authors

Anna Myers was a ZwillGen Fellow 2016-2017.

Nick’s practice focuses on representing clients in complex litigation in federal and state courts, including the defense of class action lawsuits. Nick has represented clients in matters involving federal privacy statutes, constitutional privacy rights, intellectual property, contractual disputes, and federal and state securities laws. He also assists clients in responding to investigations by federal and state regulators, as well as handling demands for user data. In addition, he has counseled clients on the privacy, intellectual property and litigation-related aspects of significant commercial transactions.

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