‘The Internet has no borders’
Supreme Court rules Canadian courts can block international websites; rights groups protest
OTTAWA — A potentially groundbreaking Supreme Court ruling recognizes that Canadian courts have jurisdiction to make sweeping orders to block access to Internet content beyond Canada’s borders.
In a David and Goliath legal saga, the high court sided Wednesday with a small British Columbia company in upholding a ruling that ordered popular search engine Google to wipe out references to a former distributor accused of stealing trade secrets.
In writing for the majority of the court in the 7-2 decision, Justice Rosalie Abella said the only way to ensure the injunction met its objective was to have the order apply where Google operates — all over the world.
“The problem in this case is occurring online and globally,” she wrote. “The Internet has no borders — its natural habitat is global.”
Google was challenging a 2015 ruling by a British Columbia court that ordered it to stop indexing or referencing websites associated with a company called Datalink Technologies Gateways.
The B.C. Supreme Court granted the injunction at the request of Equustek Solutions Inc., which was locked in battle with Datalink — its former distributor — for allegedly stealing, copying and reselling industrial network interface hardware Equustek had created.
Burnaby-based Equustek wanted to stop Datalink from selling the hardware through various websites and turned to Google for help.
Initially, Google removed more than 300 web pages from search results on Google.ca, but more kept popping up, so Equustek sought — and won — the broader injunction that ordered Google to impose a worldwide ban.
The B.C. court noted that Google controlled as much as 75 per cent of the global searches on the Internet and that Datalink’s ability to sell its counterfeit product was, in large part, tied to customers being able to find its websites through Google.
Google fought back against the worldwide order, arguing that Canadian courts don’t have legal authority to impose such an injunction.
Its written argument to the Supreme Court called the injunction “an improper and unprecedented extension of Canadian jurisprudence.”
Google’s lawyers had argued that if the court upheld a broad international injunction, it might inspire less democratic governments to seek binding court orders in Canada that are more intrusive.
Google said Wednesday it was “carefully reviewing the court’s findings” and evaluating its next steps.
The Supreme Court’s hearing of the case pitted intellectual rights holders against voices concerned about free expression.
New York-based Human Rights Watch, an intervener in the case, joined a coalition of civil liberties groups, as well as several news organizations, in arguing the Canadian courts were over extending themselves and threatening free speech across the globe.
Intervener OpenMedia, which fights for an open and surveillance-free Internet, said it was disappointed with the ruling.
There’s a great risk that governments and businesses will see the ruling as justifying censorship requests that could result in “perfectly legal and legitimate content” disappearing off the web because of a court order in the opposite corner of the globe, OpenMedia said.
“That would be a major setback to citizens’ rights to access information and express ourselves freely.”
Equustek had the support of a coalition of Canadian publishers, authors, composers and filmmakers, along with an international federation of film producers.
Barry Sookman, lawyer for several large music companies and other creative organizations that intervened in the case, praised the decision, saying it would “very likely have enormous implications around the world.”
The ruling will help holders of intellectual property rights but could also serve as a precedent in Internet-related cases involving privacy, defamation and cyberstalking, Sookman predicted Wednesday.
He said the ruling could provide a “general framework for analysing when an order can be made against a search engine to help stop the facilitation of whatever that wrong happens to be.”