Worldwide interlocutory injunction upheld
With its decision in Google Inc. v. Equustek Solutions Inc., the Supreme Court of Canada has upheld an order against Google which has global effect. Equustek was a tech company in British Columbia, and it had an arrangement with Datalink in which Datalink distributed networking devices designed and built by Equustek. It alleged that Datalink began relabeling one of the Equustek devices as Datalink’s own and began selling it on that basis. In addition it alleged that Datalink had acquired and was using confidential information and trade secrets belonging to Equustek. Equustek launched an action against Datalink and demanded that Datalink delete all references to Equustek’s products and trademarks on its websites.
Equustek was successful in obtaining an injunction which ordered Datalink to do a number of things, such as to return any source codes, board schematics, and any other documentation it had in its possession that belonged to Equustek, and to cease to refer to Equustek or any of Equustek’s products on its websites. Datalink was also ordered to post a statement on its websites indicating that it was no longer a distributor of Equustek products and directing customers to Equustek’s website. Rather than comply with the order, however, Datalink fled the jurisdiction and continued to act as it had, running its websites from unknown locations outside of Canada.
Equustek sought and obtained various other orders against Datalink, none of which were successful in stopping their activities. Subsequently, Equustek approached Google and asked them to de-index Datalink’s websites, in an effort to make them less discoverable by consumers. Google refused to do this, although it later appeared in court with Equustek as they obtained an injunction ordering Datalink to cease operating or carrying on business through any website. AS a result of that order, Google removed a number of Datalink’s individual webpages, though they still refused to de-index entire websites. Equustek discovered that this approach was ineffective, since Datalink simply moved the content to different pages on its websites.
In addition, Google had only removed pages from searches conducted through Google.ca, which therefore only affected searches conducted from Canada. Indeed, it did not necessarily affect all of them, since a person in Canada could simply search through the URL for Google in some other country. As a result, Equustek sought, and was successful in obtaining, an interim injunction requiring Google to de-index Datalink’s entire websites, and to do so through all searches on Google, not simply those through Google.ca (see the It.Can newsletter of June 25, 2014). This injunction was upheld by the British Columbia Court of Appeal (see the It.Can Newsletter of June 25, 2015). The Supreme Court of Canada has now upheld that interim injunction.
Commenting in particular on the need to have the injunction apply globally, the Court held:
…The problem in this case 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. As Fenlon J. found, the majority of Datalink’s sales take place outside Canada. If the injunction were restricted to Canada alone or to google.ca, as Google suggests it should have been, the remedy would be deprived of its intended ability to prevent irreparable harm. Purchasers outside Canada could easily continue purchasing from Datalink’s websites, and Canadian purchasers could easily find Datalink’s websites even if those websites were de-indexed on google.ca. Google would still be facilitating Datalink’s breach of the court’s order which had prohibited it from carrying on business on the Internet. There is no equity in ordering an interlocutory injunction which has no realistic prospect of preventing irreparable harm.
The Court also observed the way in which the claim that the injunction was a “worldwide” one was exaggerated:
…The order does not require that Google take any steps around the world, it requires it to take steps only where its search engine is controlled. This is something Google has acknowledged it can do — and does — with relative ease. There is therefore no harm to Google which can be placed on its “inconvenience” scale arising from the global reach of the order.
A further issue in the case was comity. Google argued that the Canadian order could potentially conflict with the law of some other country, thereby imposing Canadian law on another state. The Court was again unpersuaded by that claim. Factually the Court doubted that an order protecting intellectual property rights would be inconsistent with the laws of any other jurisdiction, but allowed for the possibility of the interim injunction being amended if that were shown to be the case in any particular jurisdiction. Given the nature of the injunction, however, the Court placed the onus on Google to show such an infringement:
 In the absence of an evidentiary foundation, and given Google’s right to seek a rectifying order, it hardly seems equitable to deny Equustek the extraterritorial scope it needs to make the remedy effective, or even to put the onus on it to demonstrate, country by country, where such an order is legally permissible. We are dealing with the Internet after all, and the balance of convenience test has to take full account of its inevitable extraterritorial reach when injunctive relief is being sought against an entity like Google.
Finally the Court noted that this interim injunction was not dissimilar to what Google already did in other contexts:
 And I have trouble seeing how this interferes with what Google refers to as its content neutral character. The injunction does not require Google to monitor content on the Internet, nor is it a finding of any sort of liability against Google for facilitating access to the impugned websites…
 Google did not suggest that it would be inconvenienced in any material way, or would incur any significant expense, in de-indexing the Datalink websites. It acknowledges, fairly, that it can, and often does, exactly what is being asked of it in this case, that is, alter search results. It does so to avoid generating links to child pornography and websites containing “hate speech”. It also complies with notices it receives under the US Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2680 (1998) to de-index content from its search results that allegedly infringes copyright, and removes websites that are subject to court orders.
Ultimately the decision is a recognition both of the globalizing effects of the internet, but also of the impact that private companies like Google have on it. As the Court observed at paras 52-53 in closing, “Google is how Datalink has been able to continue harming Equustek in defiance of several court orders…This does not make Google liable for this harm. It does, however, make Google the determinative player in allowing the harm to occur.”