Expert Speak Digital Frontiers
Published on Jul 20, 2017
The Internet serves as a unique prospect for empowerment and a powerful tool for realising the freedom of expression.
The Equustek decision of the Canadian Supreme Court is a victory for the Internet

Last month, the Canadian Supreme Court finally came out with its much awaited ruling in the Google v. Equustek case. Upholding the judgment of the British Columbia Court of Appeals, the Supreme Court asked Google to delist search results to the website of a company that sold goods while violating Canadian intellectual property laws. Crucially, the Court held that this delisting must take place, regardless of the location of the website — that is across all domains (such as and globally, which might provide consumers access to these websites. Both the build-up and aftermath to the case featured stern rebuke from free speech advocates and commentators who argue that this case has grave implications for the protection of the freedom of expression online. The decision does no such thing. Instead, it acts as a crucial safeguard against the misuse of Internet for violating intellectual property standards and serves as a boost for trade and commerce, while retaining the flexibility that prevents it from being used as a tool for the suppression of free speech.

What was the case about?

Equustek, a small technology company in British Columbia had been conned by one of the distributor for its products, Datalink. Datalink started re-labelling Equustek's products and passing it off as their own. Further, they acquired confidential information and trade secrets from Equustek, which they used to design a competing product. While Google was not involved in the dispute directly, it had attempted to quash the decision of the lower courts in a bid to preserve the freedoms associated with the Internet and prevent the Canadian courts from violating the accepted standards of extraterritorial jurisdiction in international law.

The majority disagreed with Google and upheld the interlocutory injunction issued by the Court of Appeals that required Google to delist the infringing websites worldwide. The Court held that the objective of the interlocutory injunction would be defeated if it was limited only to Google Canada as users, both within and outside Canada could simply access the infringing websites by using the server. Further, by referring to the judgment of the lower court, it stressed that it did not appear that the delisting of websites that clearly violated acceptable standards of intellectual property law and several court orders, offended the core values of free speech in any nation. However, if there was evidence of that being the case, the Supreme Court stated clearly that Google could apply to the Canadian courts for an amendment to the interlocutory order.

A well-reasoned and fair approach

Before responding to the fairly vehement criticism of this judgment across borders, we must appreciate its framework of reasoning. The Supreme Court considered this dispute like any other case involving an interlocutory injunction. Classic jurisprudence on interlocutory injunctions require the fulfilment of three key prongs:

  • A serious issue to be tried,
  • Causing of irreparable harm if the injunction is not granted, and
  • A balance of convenience test.

The injunction is valid on all three grounds. Datalink was clearly passing off Equustek's intellectual property as its own and the continued sale of its goods through online platforms was enabling it to profit at the expense of Equustek. This clearly meant that there was a serious issue at hand and irreparable harm was being caused to Equustek's commercial dealings. We must consider here that the intellectual property laws were put in place to act as a crucial safeguard for innovation and expression. Ignoring intellectual property standards legitimises theft of legitimate expression and serves as a disincentive for investment in innovative output as the innovator may not reap the benefit of his/her output. Thus, the gravity of Datalink's actions cannot be understated, something which the Court rightfully understood.

The Court also considered the principle of comity when assessing the third prong. However, given that there was no conflict of laws in this instance, there was no need for it to undertake this analysis. The violation of intellectual property standards on the one hand and no evidence to the contrary on the other clearly satisfied the balance of convenience test. Any other conclusion would have led to inadequate enforcement of intellectual property standards, which serve as the edifice for the rapid proliferation of tech firms all across the globe.

Response to Critics

Critics of the judgment have offered three broad responses that are summed up by the Electronic Frontier Foundation in the line — <The Court apparently ruled that> a country has the right to prevent the world’s Internet users from accessing information. In this section, I attempt to respond to each of them.

The judgment violates acceptable principles of international comity.

Essentially, the arguments that fall within this head of criticism believe that the Court should not have compelled Google to enforce the injunction in other jurisdictions. Of course, Google accepted that Canada has jurisdiction in persona over Google due to its transactions in the country and did not dispute the fact that Datalink's activities were clearly violating Equustek's rights. The principle of comity dictates that sovereigns should strive to preserve the rights of its people universally unless they cause prejudice to the rights of citizens in other jurisdictions, in which case the conflict would need to be analysed and harmonised. In this case, there was no conflict and the only means of protecting Equustek's rights was the imposition of the worldwide injunction.

The decision will trigger a 'race to the bottom' in freedom of expression online.

This claim has been substantiated by citing a hypothetical possibility where Saudi Arabia or China may use this case as precedent and ask third-parties to take down content that violates their restrictive standards on free speech. This would lead to the Internet being censored by the state with the most restrictive standards of free speech, thus triggering a 'race to the bottom.' This claim is fallacious for multiple reasons.

First, it is unlikely that such regimes would rely on court orders in order to censor content they do not want citizens to access. They would do so regardless. The most recent example is China's crackdown on Virtual Private Networks (VPN). Till date, Chinese users had utilised VPNs to circumvent 'The Great Firewall' that blocks non-approved websites, including Google and Facebook. However, if they were looking for a legal precedent to justify their actions, the Equustek decision would probably not serve their needs. The judgment clearly states: ".. It is always important to pay respectful attention to freedom of expression concerns, particularly when dealing with the core values of another country.."

Further, if the countries were attempting to use international jurisprudence to underscore a global takedown order on legitimate content, international human rights law would also playact as a fetter. The United Nations Special Rapporteur on The Promotion and Protection of the Right to Freedom of Opinion and Expression (hereinafter, UN Rapporteur), outlines clearly in a 2011 Report that any takedown order must satisfy the three-pronged test of having:

  • An unambiguous law,
  • Legitimate purpose, and
  • Respect for the principles of necessity and proportionality.

A ludicrous takedown order of content that expresses lawful dissent would certainly not fulfil these criteria. In such a scenario, intermediaries like Google could always approach courts in other countries and request for non-enforcement of such orders.

This is not the first time that a case of this nature has come up. In the Yahoo v. LICRA decision of 2006, the US District Court for the 9th Circuit upheld an order of a French court that required Yahoo to filter content in a manner that restricted the sale of Nazi memorabilia to French users. The promotion and sale of Nazi memorabilia violates France's anti-hate laws and is in fact, considered a criminal act. The United States has adopted a far wider interpretation of the right to free speech guaranteed by the First Amendment of the US Constitution and permits restrictions on very limited grounds. Expecting all global takedown orders to conform to the least restrictive standard endorsed by the United States triggers a 'Race to the Bottom' in the opposite direction. Therefore, in such scenarios, courts must necessarily examine the conflict of laws and customise the removal of content in a manner that addresses this conflict. The Equustek decision does not prevent but in fact, encourages this thinking and thus should be celebrated by free speech advocates.

The decision sets an unfair burden on Google, which is a third party.

Finally, some critics argue that this judgment would require Google to bear the burden of resolving the conflict of laws in various jurisdictions. This claim is a little farfetched considering that this is something that multinational companies already do without much hassle. Google thrives on an internet that is accessed by users in various jurisdictions and is thus, in the words of the 2017 Report by the UN Rapporteur obliged to ".. ritically examine at least applicable local and international laws and standards, including potential conflicts between local laws and human rights; freedom of expression and privacy risks embedded in the company’s products and services." It is safe to say, therefore that the legal team at Google is more than equipped to deal with these conflict of laws issues.

The Internet serves as a unique prospect for empowerment and a powerful tool for realising the freedom of expression. Adopting a 'one-size-fits-all' approach that prevents restrictions of any kind endorses misuse that and harms the very values it is supposed to advocate. The Equustek decision, serves as a major victory for continuing global efforts to preserve the essence of cyberspace.

The author is a recent law graduate from the West Bengal National University of Juridical Sciences.

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