The Supreme Court of Canada has agreed to hear Google's
appeal of a worldwide injunction forcing it to block certain
infringing websites from its search results. The appeal raises
issues of how to provide meaningful protection of rights over a
borderless Internet, while not unduly burdening innocent third
parties or preventing access to information.
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
"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,"
"That (injunction) is necessary
... to ensure that the defendants cannot continue to flout the
The injunction was later affirmed in a decision of the British Columbia Court of
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
The Supreme Court's decision is highly anticipated and may
have global ramifications on the ability of courts to control
content on the Internet.
The preceding is intended as a timely update on Canadian
intellectual property and technology law. The content is
informational only and does not constitute legal or professional
advice. To obtain such advice, please communicate with our offices
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In less than nine months, on July 1, 2017, persons affected by a contravention of Canada's anti-spam legislation will be able to invoke a private right of action to sue for compensation and potentially substantial statutory damages.
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