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

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.]

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

Google Asks US Court To Block Terrible Canadian Supreme Court Ruling On Global Censorship

from the jurisdictional-mess dept

Going back to the earliest days of Techdirt, we wrote numerous times about what a jurisdictional mess the internet was for various laws and legal regimes. But, even so, decades later, it's still pretty shocking just how messy Google's dispute over global censorship with Canadian courts has become. Last month, we wrote about a positively terrible decision in the Canadian Supreme Court, which upheld an appeals court and a district court, ruling that a Canadian court could order a site to block access to content on a global basis. The lawsuit itself, brought by a company called Equustek against another company apparently selling knockoff/counterfeit equipment, pulled Google into its orbit when the court ordered Google, as a non-party in the case -- to block access worldwide to sites managed by the defendant in the lawsuit (who never showed up in court).

Google pointed out (quite reasonably) that Canadian courts don't have jurisdiction over the global internet any more than a Chinese or Iranian or Russian court would have jurisdiction across the globe. Over and over again, the Canadian courts more or less ignored the issue, saying, "doesn't matter, block it, this is bad stuff." We've discussed at great length the dangers of such a decision, so we won't rehash it now -- go read the previous posts, if you want to review that argument.

But here's where things get... odd. Most people assumed that this was the end of the road on this case. The Supreme Court in Canada is the top of the chain. There was no appeal. Google could (and probably will, if it hasn't already) petition the Canadian government to clarify the law on this. And it may push for clauses in trade agreements that block this sort of thing as well. Some even argued that Google might be able to make an "ISDS" claim out of this (though, that would be messy...). But, apparently, Google felt it had one more way to crack this nut: it has filed for declaratory relief in the US.

In short, Google is going to a US court and saying, "this ruling in Canada is offensive to our laws and Constitution, and you should block the Canadian courts from enforcing it." This is... fascinating from a legal geek standpoint. We do have the SPEECH Act, which bars foreign judgments being enforced in the US when it would go against the First Amendment, but this is slightly different. Google is arguing that a US court should, at the very least, stop Canada from being able to enforce the blockade in the US, because that violates both the First Amendment and Section 230 of the CDA.

This Court has personal jurisdiction over the Defendants because, inter alia, the Defendants have knowingly engaged in a course of conduct whereby they sought and obtained injunctive orders in the Equustek v. Jack litigation in Canada that are expressly aimed at requiring Google to undertake actions in the United States—specifically, to delist search results in the United States and throughout the world. In November 2012 Equustek served Google with a Notice of Application to the British Columbia court at Google’s offices in Mountain View, California. Equustek thereafter renewed the Application for a delisting injunction on May 13, 2013; sought and obtained a trial court injunction on June 13, 2014; and maintained its position adverse to Google through the Canadian appellate process. The Supreme Court of Canada confirmed in its June 28, 2017 opinion that the Canadian order was intended to require Google to take steps where its search engine is controlled—namely, California.

And here's where things get really interesting. The Canadian Supreme Court ruling argued that the "harm" presented by Google up north was merely "theoretical" rather than real. However, Google wants the US court to rule that such an injunction violates the First Amendment and Section 230 of the CDA... at which point the harm is no longer theoretical because it will have a court ruling showing that the blockade has actually censored speech.

Of course, this may lead to a long fight in the US, which may also lead to many years of appeals and whatnot -- and the end result may be... who the hell knows what? What happens when you have two court systems in two different countries completely at odds with one another, with one claiming sovereignty over actions taken in the other's territory (and everywhere else)? One would think that the US would win out in that situation, but... it's kind of uncharted waters. And that by itself reinforces the very point that Google was trying to make, and which three levels of Canadian courts brushed off as no big deal. Clearly, this is going to be a case worth following, as the question of court jurisdiction on the internet gets more and more... fascinating.

Filed Under: canada, first amendment, free speech, global block, jurisdiction, right to be forgotten, us
Companies: equustek, google