The Google injunction saga continues.

On April 16, 2018, the Supreme Court of British Columbia in Equustek Solutions Inc v Jack, 2018 BCSC 610 refused to vary an interim injunction earlier issued by that court that had required Google, a third party to the underlying action, to deindex certain websites from its global search results. This April 16th decision came after a U.S. court ruled in November 2017 that the Canadian issued injunction could not be enforced in the United States as contrary to a U.S. law (our discussion of the U.S. decision is available here). This latest decision creates some certainty for the enforceability of worldwide orders issued by Canadian courts, clarifies conditions under which such orders might be varied, and affirms the integrity of Canadian courts over their own processes.

Background

The global impact of the British Columbia Supreme Court’s interim injunction, which issued against Google in 2014, was upheld last summer by the Supreme Court of Canada. The 2014 interim injunction requires Google to block from its worldwide search results websites alleged by Equustek to sell products containing its misappropriated confidential information and that mislead consumers about the manufacturer of the products being sold (i.e., that they were Equustek’s products when they were not). The operators of the websites had been sued by Equustek, fled Canada, and then began operating from an unknown location. Equustek asked Google to block these websites from its search results, and Google voluntarily complied—for Canada. Equustek asked the BC Supreme Court to require Google to deindex those sites from all its search results, in other words, on a worldwide basis. The Court agreed and issued an interim injunction against Google pending trial of the underlying lawsuit between Equustek and the counterfeiter. On appeal of that interim order, and before the Supreme Court of Canada, Google argued that, among other reasons, the injunction should be struck because it would interfere with Google’s freedom of expression in other countries, particularly the United States.

In approving the global reach of the injunction, the Supreme Court of Canada stated “[t]he problem … is occurring online and globally. The Internet has no borders — its natural habitat is global. The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates — globally.” While thus finding the worldwide scope of the order necessary from a practical perspective, the Supreme Court of Canada agreed there was room to vary such an order:

[46] If 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.

This is what Google attempted to do in the latter half of 2017.

Evidently displeased with the Supreme Court of Canada’s decision, Google applied to the U.S. District Court for the Northern District of California for an injunction prohibiting enforcement of the Canadian order. Equustek did not oppose, and the request was granted in November 2017. With the U.S. decision in hand, Google came back to the British Columbia Supreme Court to vary the injunction order, only to have that request dismissed on the grounds that the U.S. decision did not find that the Canadian order required Google to violate the law of another jurisdiction (in this case, the U.S.), and so failed to meet the Supreme Court of Canada’s conditions.

The BC Supreme Court’s April 2018 decision

In holding that the U.S. decision was not a reason to vary the Canadian order against Google, the British Columbia Supreme Court made a number of important observations. First, it interpreted the Supreme Court of Canada’s statement that the injunction order against Google could be varied if shown that it required the violation of another country’s laws as requiring the order to compel a positive act or omission. In other words, to direct unlawful actions—not to restrict the exercise of otherwise lawful conduct or rights (such as expression). Second, the Court noted that the U.S. decision made no finding as to whether upholding the injunction would violate freedom of expression. Instead, the U.S. judge issued the decision on the basis of a provision in the U.S. Communications Decency Act that provides immunity to providers of interactive computer services against liability arising from content created by third parties, and in particular, deems such providers to not be a “publisher” or “speaker” of such content. The U.S. judge found that the Canadian order would, in effect, be contrary to U.S. law—not that it would require Google to break the law.

To the British Columbia Supreme Court, the impact of the U.S. decision was merely that the action could not be taken against Google in U.S. courts to enforce the Canadian order—not that the scope of the Canadian order ought to be restricted:

[22] The effect of the US order is that no action can be taken against Google to enforce the injunction in US courts. This does not restrict the ability of this Court to protect the integrity of its own process through orders directed to parties over whom it has personal jurisdiction.

It is not known yet whether Google will appeal this latest decision.