In agreeing to hear the case, Canada's highest court defined those questions as follows:
- "Under what circumstances may a court order a search engine to block search results, having regard to the interest in access to information and freedom of expression, and what limits (either geographic or temporal) must be imposed on those orders?"
- "Do Canadian courts have the authority to block search results outside of Canada's borders?"
- "Under what circumstances, if any, is a litigant entitled to an interlocutory injunction against a non-party that is not alleged to have done anything wrong?
The underlying dispute involved Equustek Solutions Inc., a manufacturer of networking devices for complex industrial equipment. Equustek alleged that its former distributor, Datalink Technologies, conspired with one of its engineers to design and manufacture a competing product using Equustek’s trade secrets. Datalink went on to sell the products using Equustek’s trademarks and logos.
Both companies reside in British Columbia, and Equustek obtained numerous court orders from the British Columbia Supreme Court enjoining Datalink from further infringement. However, Datalink simply disappeared and continued to sell the infringing products online. Search engine giant Google was a third party to the litigation, which became involved because Datalink relied heavily on search engines to market its infringing products, including purchasing Google AdWords.
Initially, Google voluntarily removed 345 links from search results in Canada. However, Equustek was not satisfied since Datalink’s network of infringing websites was still available through Google searches conducted internationally outside of Canada. In a ground-breaking British Columbia Supreme Court decision, Equustek obtained a global interim injunction against Google forcing it to cease indexing or referencing Datalink’s infringing websites. In reaching its decision, the Court stated:
"The courts must adapt to the reality of e-commerce with its potential for abuse by those who would take the property of others and sell it through the borderless electronic web of the internet,"
and
"That (injunction) is necessary ... to ensure that the defendants cannot continue to flout the court's orders."
The injunction was later affirmed in a decision of the British Columbia Court of Appeal.
Some observers have commented that the order could possibly create a “slippery slope” precedent that could lead to undue censorship. Equustek has taken the position that the websites being blocked have never been used for lawful purposes and that the injunction does not risk limiting access to information or freedom of expression.
The Supreme Court’s decision is highly anticipated and may have global ramifications on the ability of courts to control content on the Internet.
For further information regarding this topic, please contact a member of our firm’s Domain Names and Internet Law group.
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