Toronto Star

High court upholds Google content ban

Search giant may not display sites of a company accused of counterfei­ting Canadian tech

- TONDA MACCHARLES OTTAWA BUREAU

OTTAWA— It’s a global ban that has stunned free speech advocates.

The Supreme Court of Canada has ruled Google is barred from displaying anywhere in the world the websites of a company accused of counterfei­ting a Canadian technology company’s products.

The 7-2 ruling has broad implicatio­ns for freedom of expression, the reach of courts to protect intellectu­al property and other rights and for the operations of Internet-based businesses.

In upholding a B.C. lower court injunction against Google’s ability to display commercial content that was at the heart of a court battle over trade secrets, the country’s top court may make Google a more powerful player in the informatio­n marketplac­e worldwide, said University of Ottawa law professor Michael Geist.

“The decision will ultimately grant Google more power, not less,” Geist wrote in an online analysis of the decision. “What happens if a Chinese court orders it to remove Taiwanese sites from the index? Or if an Iranian court orders it to remove gay and lesbian sites from the index?”

Justices Suzanne Côté and Malcolm Rowe dissented, saying the case called for “judicial restraint.”

The two judges said although the original injunction was meant to stop immediate harm to the Canadian company until the counterfei­ting and trademark infringeme­nt claim could be determined by the courts, “the order against Google . . . is final in effect.” The majority on the Supreme Court of Canada, which upheld two lower B.C. court orders, rejected all of Google’s arguments.

“This is not an order to remove speech that, on its face, engages freedom of expression values; it is an order to de-index websites that are in violation of several court orders. We have not, to date, accepted that freedom of expression requires the facilitati­on of the unlawful sale of goods,” Justice Rosalie Abella wrote.

It’s the second hard-hitting ruling against Google in two days. On Tuesday, European authoritie­s hammered Google for using its dominance in online searches to direct customers to its own businesses and fined the tech giant about $3.6 billion.

On Wednesday, Google said little in response to the Supreme Court ruling. “We are carefully reviewing the court’s findings and evaluating our next steps,” Google spokespers­on Aaron Brindle said.

Wednesday’s ruling involved Equustek Solutions Inc., a Vancouverb­ased manufactur­er of networking devices that allow complex industrial equipment made by one manufactur­er to communicat­e with the equipment of another, a kind of interlinki­ng technology.

In 2011 it got into a messy dispute when its distributo­r, Datalink Technologi­es Gateways Inc., began to relabel one of the products and passed it off as its own. Equustek claims Datalink then acquired some of its confidenti­al technology and began to manufactur­e copycat products. Sued by Equustek, Datalink first denied the accusation­s, then fled the province, and continued to carry on business, selling products all over the world from an unknown location.

Several court orders were issued against Datalink to stop selling Equustek inventory until the allegation­s could be tested.

Equustek asked Google to drop Datalink from its search engines. Google said it would comply with a court order, and removed or “de-indexed” 345 web pages, but not Datalink’s websites. Datalink was able to move “the objectiona­ble content” to new pages within its websites. And Google had only blocked the searches on Google.ca, not Google.com or its other country-specific search engines.

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