In Google LLC v. Equustek Solutions Inc.,1 a United States district court enjoined the enforcement of an order by the Supreme Court of Canada that directed Google to remove content from Google search results. The Canadian order covered results not only from searches done in Canada, but also in the United States.2 The U.S. district court’s rejection of the Canadian order is worth reviewing because it sheds light on an emerging issue: the circumstances under which U.S. courts might or might not be willing to enforce orders from the courts of other states in cases affecting the speech rights of Internet search providers. The issue could be relevant to future attempts to enforce European adjudications involving the so-called “right to be forgotten” doctrine or “right of erasure” in American courts. EU authorities have determined that in some cases enforcing the ‘right to be forgotten’ can require the delisting of search results, a remedy that the EU’s courts may well decide to apply extraterritorially.

Background

According to the opinion, Equustek filed suit in Canada in 2011 against a company named Datalink and associated defendants. Datalink, a competitor of Equustek’s in the computer hardware business, was accused of, among other things, “collud[ing] with a former Equustek engineer to incorporate Equustek’s trade secrets into Datalink’s products” and “misle[ading] customers who believed they were buying Equustek’s products.”3 Equustek prevailed on its claims and obtained several Canadian court orders against Datalink, which “refused to comply” with those orders and “fled the country.”4

In September 2012, Equustek asked Google to remove Datalink’s websites from its search results, a request that Google initially refused. After the Canadian court issued its orders against Datalink, however, Google removed over 300 Datalink websites from its Canadian search results--but not from search results outside Canada.5

Equustek then sought an order from the Canadian courts that would have required Google to remove the Datalink websites from its worldwide search results. The Canadian trial court granted Equustek’s request for relief and the Canadian appellate courts affirmed the trial court’s decision.6

In July of 2017, a few weeks after the Canadian Supreme Court’s decision affirming the order, Google filed suit in the United States District Court for the Northern District of California to prevent the order from being enforced in the United States. Specifically, the company sought a “declaratory judgment that the Canadian court’s order cannot be enforced in the United States and an order enjoining that enforcement.” The company also moved for a preliminary injunction pending final disposition of the matter.7

The U.S. District Court’s Decision

The Honorable Edward J. Davila, United States District Judge for the Northern District of California, granted Google’s motion for preliminary relief. Judge’s Davila’s order notes that Equustek did not file a brief in the California proceeding, and that it instead chose to send the district court a letter protesting Google’s motion as “unnecessary and unfair.” The Court did not consider the letter in reaching its decision.8

Google argued that the Canadian Court’s order was unenforceable because it was inconsistent with the immunity provided to internet service providers by Section 230 of the Communications Decency Act.9 The company claimed that enforcement of the Canadian order was also barred by the U.S. Constitution and rules of international comity.10

In the end, the district court based its decision solely on Section 230, which immunizes providers of interactive computer services against liability for content created by third parties. Section 230 provides in relevant part that, “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”11 The statute was intended to insulate companies like Google that provide access to the Internet from the threat of potentially massive tort liability that could arise from treating them as the “publishers” of third-party content accessed through their services.12 Section 230 does not bar suits against access providers who produce and publish their own tortious materials; nor does it prohibit claims against the actual third-party authors who publish tortious material online. Rather, the immunity protects only the internet access providers who provide gateways for others to post their materials on the Internet, as long as they can demonstrate that they had no material role in creating or authoring the allegedly offending content.13

Applying the four-factor test for preliminary injunctions, Judge Davila concluded that Google was likely to prevail on the merits of its Section 230 immunity claim. The district court determined that, by holding Google legally accountable for the publication of search results containing Datalink websites, the Canadian courts treated Google as a “publisher” of Datalink’s information. This finding, in the Court’s opinion, was inconsistent with Section 230’s protections because, as Judge Davila viewed the issue, Datalink and not Google was the information content provider that bore responsibility for the search results. “When a user queries Google’s search engine,” the Court explained, “Google responds with links to relevant websites and short snippets of their contents. Google’s search engine helps users discover and access content on third-party websites, but it does not ‘provide’ that content within the meaning of Section 230.”14

Because they saw Google as the “determinative player in allowing” Equustek to be harmed, the Canadian courts ruled that Google should be barred from displaying Datalink's websites in its search results. However, Judge Davila held that this ruling treated Google as a publisher within the meaning of Section 230, since “removing content is something publishers do.”15 This finding, along with the conclusion that Google met Section 230’s other requirements, led the court to conclude that Google was likely to prevail on its claim that Section 230’s immunity barred enforcement of the Canadian courts’ injunction in United States courts.

In addition, the district court held that a preliminary injunction should issue because (a) enforcing the Canadian Court’s order would harm Google by depriving it of the benefit of a United States legal protection to which it was entitled, and (b) the injunction would serve the public interest in preserving the internet's robust environment for speech Congress enacted Section 230 to protect. Ultimately, the district court concluded that: "[b]y forcing intermediaries to remove links to third-party material, the Canadian order “undermines the policy goals of Section 230 and threatens free speech on the global internet.”16

Observations

The Equustek case bears watching because it touches on important Internet governance issues, namely the authority of a state’s courts to prevent the extraterritorial dissemination through the Internet of private information it deems harmful to its citizens, and the circumstances under which U.S. courts might or might not be willing to recognize the enforceability of such orders. Speaking generally, a U.S. court may refuse to enforce the act of a foreign government that purports to effect an interest within U.S. borders if doing so would be contrary to public policy in the United States.17

Canada’s delisting order raised issues similar to those that would be raised by the application of the so-called “right to be forgotten” rule, the European privacy rule that allows data subjects to request the removal of material deemed too old or irrelevant from the records of data controllers.18 In an appeal brought by Google, the European Union’s highest court will decide whether individual EU member states have the authority to order worldwide revisions to search results and other online records as remedies in “right to be forgotten” cases.19 Depending on that ruling, U.S. courts could at some point have to decide whether enforcing orders like Canada’s in Equustek can ever be consistent with this country’s constitutional and statutory speech protections. The Equustek court’s answer to this question appears to be, at least initially and on the particular set of facts before it, that orders of this type should not be enforced if the effect of such an action would be to supplant legally guaranteed speech rights of American citizens.