The internet is borderless, right? So how does one country balance the rights of internet users within its own borders? And can a Canadian court reach across an international border to control the online conduct of an American company?
The case of Google and Equustek is one that has sparked interest on both sides of the border since it illustrates the limits of one company's power to enforce its intellectual property (IP) rights against a determined opponent, and the limits of the court's power to craft an effective solution for the enforcement of IP rights.
Google lost in Canada's top court and was ordered to take steps to "de-index" certain sites from its search results in an order with worldwide effect, reaching outside Canada's borders. Google promptly filed an application in US Federal Court in California, its home jurisdiction, on July 24, 2017, seeking relief from the reach of the Canadian court order.
In our update in November 2017, we showed how a US Federal Court has answered this question: the US court sided with Google, since Google is eligible in the US for Section 230 immunity under the Communications Decency Act. Essentially, under US law, Google is merely an intermediary or "interactive service provider", and not a "publisher" of the offending content. As an intermediary, it takes the cover of certain provisions granting immunity from liability.
(See: Google LLC v. Equustek Solutions et al., USDC, Northern District of California, San Jose Division, case No. 5:17-cv-04207-EJD, December 14, 2017 (Order granting permanent injunctive relief).)
What's next? With a permanent injunction in hand in the US action, it will be up to Google to decide whether to re-apply to the Canadian courts to vary or amend the scope of the Canadian court order. Or whether Google will merely rely on the US court order to limit its de-indexing to Canada alone, something that Google has previously offered to do as a compromise position within the Canadian proceedings.
Meanwhile, courts will continue to jostle for position to determine the limits of their reach. Late last year, US courts faced another decision with cross-border implications when an Australian decision was struck down in a US court. That case involved a free speech defence to a defamation claim.
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