The judicial saga Google Inc. c. Equustek , whose context and reasons we had summed up in our newsletter of August 7th, 1 , has experienced a new rebound.
Recall that on June 28, 2017 2 , the Supreme Court of Canada upheld an extraterritorial injunction against Google, a third party to the dispute (between Equustek Solution Inc. and Datalink Technologies Gateway Inc.).
In their reasons, the majority, in the words of the Honorable Rosalie Abella, referred to the possibility that the injunction order thus issued might contravene the laws of another country, and " inter alia expression ". Thus, if a country considered that the order violated his basic values, then Google could " ask the courts of British Columbia to change the interlocutory order accordingly " 3 .
This invitation did not remain a dead letter. Google has filed an application with the Federal District Court of Northern California to prevent the application of the Canadian injunction in the United States. In support of his motion for interlocutory suspension before the US Federal Court, Google has taken up the arguments, already unsuccessful before Canadian judges, about the infringement of freedom of expression and the principle of international comity:
" Google argues that the Canadian order is" unenforceable in the United States because it directly conflicts with the First Amendment, Discloses the Communication Decency Act's Immunity for Interactive Services Providers, and Violates Principles of International Comity . "
It is apparent from the decision that in the United States, Google had an additional argument: the " Immunity Principle of Interactive Computer Service Providers " in Article 230 (c) (1) of the Communication Decency Act , according to which such providers can not be held responsible for content created by third parties 4 .
On 2 November 2017, in response to these arguments 5 , the California court suspended the injunction first six interlocutory way, before ordering the permanent suspension 7 on 14 December.
A first limit to the extraterritorial scope of the Canadian injunction has just been raised.