Canada: Google. v. Equustek Solutions

Last Updated: December 19 2017
Article by Fogler, Rubinoff LLP

(We Are Not the World)

Now that we are 20-some years into the Internet revolution it has become clear that as laws are necessarily tied to a jurisdiction they can appear ineffective when confronted by a globalised suite of technologies that are designed to efficiently route around a locally expressed challenge to data transmission. That dilemma is increased when different jurisdictions cannot agree on the breadth of protection to be offered to Internet intermediaries.

In June of this year in a case which involved the assertion of intellectual property rights, the Supreme Court of Canada by a majority of 7-2, upheld a worldwide interlocutory injunction ordering Google to de-index the website of Datalink Technology Gateways from its global search results as those websites were being used to sell products that violated Equustek Solutions' intellectual property rights. Via this controversial decision the Supreme Court asserted a global power to alter online content for Internet users.

Equustek, a small British Columbia based technology company, initially launched an action against a distributor claiming that it had re-labelled one of its products and passed it off as its own. It further alleged the distributor misappropriated confidential information and trade secrets, using them to design and manufacture a competing product. The distributor initially filed statements of defence disputing Equustek's claims, but eventually abandoned the proceedings and left British Columbia. Some of those statements of defence were subsequently struck. Despite court orders prohibiting the sale of inventory and the misuse of Equustek's intellectual property, the distributor continued to carry on its business from an unknown location, selling its products to customers online. Equustek then requested that Google de-index the distributor's websites and in refusing that request Google asked Equustek to instead obtain a suitable court order prohibiting the distributor from carrying on business on- line.

Such an injunction was issued by the Supreme Court of British Columbia ordering the distributor to cease operating or carrying on business through any website. Google subsequently advised Equustek that it had de-indexed 345 specific webpages associated with the distributor. It did not, however, de-index all of the distributor's websites. De-indexing webpages but not entire websites proved to be ineffective since the distributor simply moved the objected to content to new pages within its websites. Moreover, Google had limited the de-indexing to searches conducted on Equustek then obtained an interlocutory injunction to enjoin Google from displaying any part of the distributor's websites on any of its search results worldwide. The Court of Appeal for British Columbia dismissed Google's appeal.

The 3 part test usually applied in Canada for determining whether an interlocutory injunction should be granted involves asking if:

  1. there is a serious issue to be tried;
  2. an irreparable harm would result if the injunction is not granted; and
  3. the balance of convenience favours granting the injunction.

The parties agreed on the first two parts of the test; however, on the balance of convenience point Google argued that as it was not a party to the original intellectual property litigation it should be immune from the worldwide injunction, and that the injunction was not necessary nor effective in preventing the complained of harm.

Abella J, writing for the majority of the Supreme Court, rejected Google's arguments, stating that Google facilitated the defendant's unlawful activity through its search engine, and that restricting the injunction to the Canadian search engine alone would not be effective in reducing the harm. The majority found that while Google was not liable for the harm, it was "a determinative player in allowing the harm to occur". The Supreme Court also held that the requested worldwide injunction did not engage freedom of expression concerns.

However, in early November the Supreme Court's muscular approach to the indirect protection of Canadian intellectual property rights was blunted when the District Court for Northern California granted Google's unopposed motion for preliminary injunctive relief, blocking the enforcement of the worldwide interlocutory injunction. In the US court proceedings Google asserted that the Canadian order was unenforceable in the US as it was inconsistent with the US Constitution's protection of the freedom of speech as well as provisions in the Communication Decency Act. Section 230 of that Act is intended to immunize online intermediaries that host or republish speech by protecting them against a range of laws that might otherwise be used to hold them legally responsible for publishing third-party content.

The District Court held that Google is an "interactive computer service provider" within the meaning of Section 230 and that the information in question was created by Datalink, a third party. The Court found that the Canadian order would hold Google liable as the publisher of Datalink's information because it imposes liability for failing to remove third-party content from its search results. Thus, the Court concluded that Google was eligible for the immunity offered under Section 230 and that Google would suffer irreparable harm if it failed to intervene. The District Court found it unnecessary to review Google's First Amendment based argument.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
MacDonald & Associates
Goldman Sloan Nash & Haber LLP
Bereskin & Parr LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
MacDonald & Associates
Goldman Sloan Nash & Haber LLP
Bereskin & Parr LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions