Equustek No-Shows Legal Challenge Of Canadian Court Order Demanding Google Delist Sites Worldwide

from the and-the-links-will-be-going-right-back-up dept

Fri, Nov 3rd 2017 3:31am — Tim Cushing

Earlier this year, Canada's top court upheld a ridiculous, truly troubling ruling involving a company called Equustek Solutions. Equustek managed to get three consecutive courts to agree they had jurisdiction to force Google to block supposedly-infringing websites worldwide.

It was a rare show of audacity from the usually ultra-polite country. According to the court's reasoning, the only way to prevent continued "irreparable harm" to the plaintiff was to order Google to prevent anyone, anywhere in the world from accessing the site. That the court had no jurisdiction beyond the Canadian borders was treated as irrelevant.

Google responded to this insane ruling by filing a lawsuit in its own state, asking a judge to find the Canadian court's overreach unenforceable in the United States. It cited both Section 230 of the CDA and the First Amendment in support of its arguments.

This could have provided for some very interesting courtroom arguments. But, alas, it appears Equustek has no interest in presenting its case anywhere it doesn't have the homefield advantage. Joe Mullin of Ars Technica has more details:

It looks like Google is going to win that case, but not as a result of any high-minded legal arguments. Its opponent simply failed to show up. In a motion (PDF) filed Tuesday, Google said that Equustek CEO Robert Angus faxed Google's lawyers a letter "stating that Defendants would not be defending this action."

Equustek hasn't hired a US lawyer or shown up to any court proceeding, so Google will move for a default judgment. The company will then ask for a permanent injunction, preventing the Canadian order from being enforced in the US.

Given the authorities cited by Google in its lawsuit (Sec. 230, First Amendment), it's likely to obtain this permanent injunction. It likely would have obtained it anyway, even if Equustek hadn't chosen to opt out of the litigation. Equustek knows this, which is why it's not willing to spend any of its money fighting a losing battle.

Hopefully, the court will have a few things to say about the Canadian court's overreach when it hands this (admittedly easy) win to Google. It's all well and good to use home courts to grant you injunctions based on local law. It's absolutely appalling when a court decides it can demand compliance far outside of its jurisdiction.

[Addendum: shortly after this post had gone to bed (but fortunately before I had) the court's ruling arrived. As expected, the court [PDF] finds in favor of Google, pointing to its Section 230 immunity.

First, there is no question that Google is a “provider” of an “interactive computer service.” See 47 U.S.C. § 230(f)(2) (“The term ‘interactive computer service’ means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.”); O’Kroley v. Fastcase, Inc., 831 F.3d 352, 355 (6th Cir. 2016) (“Google is an interactive computer service, an entity that provides ‘access by multiple users to a computer server.’ ”); Parker v. Google, Inc., 422 F. Supp. 2d 492, 501 (E.D. Pa. 2006) (“[T]here is no doubt that Google qualifies as an “interactive computer service.”); Gonzalez v. Google, Inc., No. 16-cv-03282-DM, 2017 WL 4773366, at *9 (N.D. Cal. Oct. 23, 2017) (finding that Google is a provider of an interactive computer service).

Second, Datalink—not Google—“provides” the information at issue. Google crawls third-party websites and adds them to its index. When a user queries Google’s search engine, Google responds with links to relevant websites and short snippets of their contents. Id. 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...

Third, the Canadian order would hold Google liable as the “publisher or speaker” of the information on Datalink’s websites. The Supreme Court of Canada ordered Google to “de-index the Datalink websites” from its global search results because, in the Court’s view, Google is “the determinative player in allowing the harm to occur” to Equustek... The Canadian order treats Google as a publisher because the order would impose liability for failing to remove third-party content from its search results.

Google meets the requirements for Section 230 immunity. As such, the Court finds that Google is likely to prevail on the merits of its Section 230 argument.

Likewise, the court finds Google would be harmed by the Canadian court's decision.

Google is harmed because the Canadian order restricts activity that Section 230 protects. In addition, the balance of equities favors Google because the injunction would deprive it of the benefits of U.S. federal law.

[...]

An injunction would also serve the public interest. Congress recognized that free speech on the internet would be severely restricted if websites were to face tort liability for hosting usergenerated content. It responded by enacting Section 230, which grants broad immunity to online intermediaries.

The short opinion closes out with a few choice words for the overreaching Canadian court.

The Canadian order would eliminate Section 230 immunity for service providers that link to third-party websites. By 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.

The First Amendment question goes unexplored because Section 230 immunity already provides Google with all it needs to secure an injunction. But the coda on the decision makes it clear the First Amendment question wouldn't go the Canadian court's way.]

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: california, canada, cda 230, censorship, default judgment, first amendment, free speech, jurisdiction, us
Companies: equustek, google

34 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

This comment has been flagged by the community. Click here to show it

MyNameHere (profile), 3 Nov 2017 @ 3:58am

Don't you guys usually call these default rulings as "empty" and "meaingless", or is that only when it goes against what you want?
[ link to this | view in thread ]
Stephen T. Stone (profile), 3 Nov 2017 @ 4:14am

Re:
Context matters.
[ link to this | view in thread ]
Anonymous Coward, 3 Nov 2017 @ 4:44am

Re:
"Hopefully, the court will have a few things to say about the Canadian court's overreach when it hands this (admittedly easy) win to Google."

The court did have some things to say about the overreach and that alone is newsworthy and non-empty.
[ link to this | view in thread ]
madasahatter (profile), 3 Nov 2017 @ 5:48am

Re:
Default judgments rarely lead to any substantive rulings as the winner wins by the other party not showing up. In fact that the court issued such a ruling is a bit unusual but given the origin of the case the judge probably felt it necessary to give a more thorough legal analysis of the issues. The judge is saying under any reasonable understanding of how searches work and US law the Canadian ruling is one idiotic for numerous reasons and two null and void in the US (and by extension worldwide by the same logic).
[ link to this | view in thread ]
Anonymous Coward, 3 Nov 2017 @ 6:07am

Re:
Why did they not show up for their court date?

Is it possibly for the same reason(s) that other cases to which you refer did not show up for their court date?

For instance, those of lesser resources subjected to accusations followed up with court proceedings they were not informed of and finished off with the all so favorite default judgment ... yeah - those people.
[ link to this | view in thread ]
Anonymous Coward, 3 Nov 2017 @ 6:57am

Re: Re:
A few questions:

1. How does a US court ruling which by national authority limits change anything in Canada?

2. Whose court order US or Canadian going to b enforced in the rest of the world, especially in the EU, China, and the UK?

3. If there is non compliance with the Canadian order can the Canadians levee fines et. on Canadian real assets until the order is obeyed?
[ link to this | view in thread ]
Anonymous Coward, 3 Nov 2017 @ 7:27am

Re:

Don't you guys usually call these default rulings as "empty" and "meaingless"...

I thought that was what you guys usually did.
[ link to this | view in thread ]
Anonymous Coward, 3 Nov 2017 @ 7:32am

Silly Canadians
Don't they know the USA is the only country with worldwide jurisdiction?
[ link to this | view in thread ]
Roger Strong (profile), 3 Nov 2017 @ 7:34am

Re: Re:
The Canadian ruling may be null and void in the US, but then the US ruling will be equally null and void in Canada. Google does business in Canada, so it'll still be bound by the Canadian decision.

That works in the other direction too. American has anti-Cuba laws that over-reach their borders to stop Canadian companies - including Canadian subsidiaries and branches of U.S. companies - from trading with Cuba. And so Canada forbids companies from complying with those laws and orders them to notify the Canadian government if pressured to do so.

The US punishes those companies regardless. Like earlier this year when the American Honda Finance Corporation paid an $87,255 fine because their Canadian subsidiary leased cars to the Cuban embassy in Ottawa.

This is probably how the Google case will go down in Canada, regardless of the US decision.
[ link to this | view in thread ]
madasahatter (profile), 3 Nov 2017 @ 7:39am

Re: Re: Re:
On 1. It changes nothing but if one is using a vpn or tor there is a technical work around because the site thinks one is not from Canada.
On 2. Basically neither though I suspect must will use the US ruling to Canada to sod off.
On 3. Google an leave Canada and it probably will not affect things very much for them. What will probably happen if Ottawa gets carried away is the polite but firm reminder that Google is ultimately a US corp and is obeying US law so get heads of asses by Foggy Bottom.
[ link to this | view in thread ]
Anonymous Coward, 3 Nov 2017 @ 8:02am

Re:
You mean like when you said Otis Wright was wrong and he would be punished for condemning John Steele?
[ link to this | view in thread ]
Aaron Walkhouse (profile), 3 Nov 2017 @ 8:22am

They responded in writing to Google so nobody can claim they
weren't informed. ‌ They also had enough resources to go all
the way to a Supreme Court so even though Google has more
money Equustek could have fought it; so Tim's opinion that
they knew they would probably lose anyway is reasonable.
[ link to this | view in thread ]
JoeCool (profile), 3 Nov 2017 @ 8:22am

Re: Re: Re:
It's a hilarious bit of hypocrisy that Canada has ORDERED companies NOT TO OBEY rulings that are extra-national, but then tries to force Google to obey its own extra-national ruling.
[ link to this | view in thread ]
Roger Strong (profile), 3 Nov 2017 @ 8:37am

Re: Re: Re: Re:
Well, sure. But then it's equally "a hilarious bit of hypocrisy" that the US has decided that companies don't have to obey other countries' extra-national rulings, even after forcing Honda to obey its own extra-national ruling.

Of course it's not so much hypocrisy as the legal systems not having caught up with - and reigned in - the realities of multinational corporations.
[ link to this | view in thread ]
Anonymous Coward, 3 Nov 2017 @ 9:13am

Re: Re: Re: Re:
I suspect you do not recall that Canada is a member of the old UK world empire and as such any ruling by a Canadian court is valid in the UK which also makes it valid in Singapore, India, Australia, New Zealand, and South Africa; that the UK is a member of the EU which makes the ruling valid in the EU and that the US is not a member of the old UK world empire.

I also suspect that no US court is going to tell Canada's Supreme Court what the Canadian Supreme Court is going to do. I suspect that the Canadians will simply tell the US where they can shove their court ruling.
[ link to this | view in thread ]
JoeCool (profile), 3 Nov 2017 @ 9:34am

Re: Re: Re: Re: Re:
Well, we expect this hypocrisy from the US. We didn't expect it from Canada, especially after they made a point of ordering companies to ignore the US hypocrisy. Then they turn around and do the same thing themselves. It's just funny... sort of.
[ link to this | view in thread ]
John85851 (profile), 3 Nov 2017 @ 9:44am

Setting precedent
Why do some courts not care about setting a precedent? If Canadian court can rule that the US company can't do some form of business world-wide, then why can't China and North Korea do the same thing? Can North Korea sue Google into de-listed any website that's critical of their government?
Or can any country in the Middle East sue Google to de-list any site that's critical of Islam?
Better yet, what if Russia sues Google to de-list CNN, MSNBC, and any other news website that talks about Russian interference in the 2016 election?
[ link to this | view in thread ]
Anonymous Coward, 3 Nov 2017 @ 10:00am

Re:
Perhaps you misunderstood to which post I was responding?
[ link to this | view in thread ]
Anonymous Coward, 3 Nov 2017 @ 10:00am

Re: Setting precedent
You're right: Google has created conflict among countries.

Let's go back over the case: Google has gone to much trouble for ONE company which was found guilty by a court. Google now refuses to obey Canada's Supreme Court and merely remove a few links world-wide.

How can one corporation ignore a country's Supreme Court? This is Canada, not Nepal.

What happens if Horsetek, er, Equustek goes to CSC and shows Google is not obeying its order? Google fluorishes this judgment, and the CSC glances at it, then says "Plaintiff suggests 10,000 a day in damages until the order is obeyed, to which this Court adds contempt fine of 100,000 a day. So ordered." -- NOW WHAT?

And all this because Google won't take down a SPECIFIC link after going all the way possible in Canada.

By the way, Google is now flouting Crown authority, and that's potentially huge risk. On other hand, Google hands over your infos to British intelligence too.

Interesting to see if goes further, eh?

Techdirt of course just cheers the victory of corporatism.
[ link to this | view in thread ]
Anonymous Coward, 3 Nov 2017 @ 10:02am

Re: Silly Canadians
Yes ... I'm the only one that matters
[ link to this | view in thread ]
Anonymous Coward, 3 Nov 2017 @ 10:05am

Re: Re: Setting precedent
What victory is that?
[ link to this | view in thread ]
Anonymous Coward, 3 Nov 2017 @ 10:08am

Re: Re: Setting precedent

This is Canada, not Nepal.

So what if it were?
[ link to this | view in thread ]
Anonymous Coward, 3 Nov 2017 @ 10:12am

Re: Re: Setting precedent
Google News was asked by the Spanish government to pay up or leave. Google News chose to leave. The Spanish government refused to let them.

Google News has found what ordinary citizens have found out for a while; following what the government tells you doesn't absolve you from the shit getting handed out. But you've got your corporations running the government so what do you care?
[ link to this | view in thread ]
Anonymous Coward, 3 Nov 2017 @ 10:18am

Re: Re: Re: Setting precedent

Google News chose to leave. The Spanish government refused to let them.

Citation needed.
[ link to this | view in thread ]
Mike Masnick (profile), 3 Nov 2017 @ 10:38am

Re:
Don't you guys usually call these default rulings as "empty" and "meaingless", or is that only when it goes against what you want?

Default judgments involving anonymous individuals, or small time nobodies who may not even know they're being sued are meaningless. But default judgments against large companies where the companies publicly admit they know about the lawsuit, but just don't care... and where it involves not just the straight application of the law, but a unique Constitutional question, and where the judge actually weighs in on those issues, rather than a boilerplate default... Those matter.

It's almost as if you ignore all the details to attack us... and somehow think no one will notice.
[ link to this | view in thread ]
Roger Strong (profile), 3 Nov 2017 @ 10:54am

Re: Re: Re: Setting precedent
The highest court would be a lot higher?
[ link to this | view in thread ]
Anonymous Coward, 3 Nov 2017 @ 1:22pm

>Google News was asked by the Spanish government to pay up or leave.

Not true. Google News was told to pay up.

And Spain can't tell anyone whether or not they can leave. Except maybe Catalonia.
[ link to this | view in thread ]
Anonymous Coward, 3 Nov 2017 @ 1:26pm

Re:

Not true.

He doesn't care.
[ link to this | view in thread ]
Anonymous Coward, 3 Nov 2017 @ 8:29pm

Re: Re: Re: Re: Setting precedent
https://www.techdirt.com/articles/20141212/07360229413/surprise-spanish-newspapers-beg-government-eu -to-stop-google-news-shutting-down.shtml

There you go.
[ link to this | view in thread ]
Anonymous Coward, 4 Nov 2017 @ 7:06am

Re: Re: Re: Re: Re: Setting precedent
That citation doesn't support your claim.
Nice try. Busted.
[ link to this | view in thread ]
Aaron Walkhouse (profile), 4 Nov 2017 @ 10:37am

Perhaps.
It's best to quote when not replying to the post immediately above. ‌ ‌ ;]
[ link to this | view in thread ]
Anonymous Coward, 5 Nov 2017 @ 1:06am

Re: Re: Re: Re: Re: Re: Setting precedent
The citation that Google News was prevented from pulling out doesn't prove that Google News was prevented from pulling out? Whatever floats your boat, chubby.
[ link to this | view in thread ]
Jono793, 5 Nov 2017 @ 11:53pm

Interesting Implications
Regarding the so-called "right to be forgotten" in the EU. Google's obviously complying with takedown notices on local domains, but not for Google.com. There's a degree of pushback, which could result in legal action.

Of course, as Google is incorporated in Ireland for tax purposes, it may be harder to challenge or disregard an EU ruling than this Canadian ruling.
[ link to this | view in thread ]
Talmyr (profile), 6 Nov 2017 @ 6:48am

Re: Re: Re: Re: Re:
As a British citizen I suspect you do not know that you are talking out of your backside ("arse").

That is _not_ how international law works, and that is _not_ how either the Commonwealth or the EU work. Law isn't automatically carried over anywhere, even when a current member of one of those bodies - which for instance I don't recall Singapore ever being.
[ link to this | view in thread ]