United States: What Canadian Supreme Court's Landmark Decision Means For Tech Companies Big And Small

What should courts do when one country's laws collide with a borderless Internet? Last week, the Supreme Court of Canada became the latest court to tackle the issue, upholding an order for Google to de-index globally from its search results all websites belonging to a defendant accused of selling counterfeit goods. This decision, Google v. Equustek Solutions, is a major development in a controversial, and possibly harmful, trend of courts issuing orders with worldwide reach.


Equustek is a Canadian company that manufactures networking devices that interface between complex industrial equipment. It filed suit against a former distributor, Datalink, alleging that the distributor was passing off Equustek's devices as its own and using Equustek's trade secrets to design and manufacture a competing product. The lower court issued an injunction against Datalink, ordering the distributor to return the plaintiff's proprietary information and to stop referring to Equustek's products on its website. At some point, Datalink left Canada but continued to sell its "impugned product" to customers around the world from unknown locations.

Because Datalink had absconded, Equustek asked Google, a non-party, to de-index the Datalink website. Google voluntarily took down specific URLs that linked to the defendants' products, but it also limited its de-indexing to searches originating from the Canadian "google.ca" domain. Because most purchases of Datalink's product originated outside Canada, and because Canadian users could simply type in the URL of a different country's Google homepage, Equustek applied for, and the court granted, a worldwide injunction against Google. The injunction ordered Google to "cease indexing or referencing in search results on its Internet search engines" all Datalink websites "until the conclusion of the trial of this action or further order of this court."

The Court of Appeal affirmed, setting aside Google's arguments that a global injunction would violate rules of comity and threaten freedom of expression. The Court of Appeals held that courts can enjoin non-parties worldwide, especially if doing so is the "only practical way" to prevent Datalink from ignoring the court's order.

The Supreme Court's Decision: "We are dealing with the Internet after all"

In a 7-2 decision, the Supreme Court of Canada agreed with the decisions below. While much of the opinion focused on the contours of Canadian procedure, the critical part for Internet companies addressed the global scope of the injunction against Google.

The Supreme Court rejected Google's arguments that, as a non-party, it should not be subject to any injunction and that a worldwide injunction is beyond the scope of a national court. The Court disagreed, reasoning that, because Datalink would not be commercially viable without Google's search results, Google was "facilitating Datalink's breach... by enabling it to continue carrying on business through the Internet." And it held that a worldwide injunction was necessary because the only way to ensure that an injunction is effective was to apply it worldwide: "Internet has no borders — its natural habitat is global." Noting that Google regularly removes search results (for instance, based on allegations of child pornography or claims of copyright infringement), the Court also found that complying with a worldwide injunction did not impose any serious burdens on Google.

The Court also rejected Google's arguments that a global injunction violates international comity and hinders freedom of expression. Dismissing the notion that a de-listing order may run afoul of laws in other jurisdictions, the Court found that any such argument was "theoretical" because most countries likely view the sale of "pirated" products as a legal wrong. It then explicitly put the burden on non-party Google to seek modification of the order if it discovers a conflict with another jurisdiction's laws. "It hardly seems equitable," the Court wrote, "to put the onus on [Equustek] to demonstrate, country by country, where such an order is legally permissible." In the Court's view, the global reach of the Internet warranted global relief: "We are dealing with the Internet after all, and the balance of convenience test has to take full account of its inevitable extraterritorial reach when injunctive relief is being sought against an entity like Google."


The Canadian Supreme Court's Equustek decision is both significant and troubling. It is yet another step in an increasing trend among courts ordering Internet companies to remove material from their sites and services everywhere in the world. Several courts across the globe have required Google to remove search results, including the Court of Justice of the European Union in Google Spain SL v. AEPD, Mario Costeja Gonzáles (the famous "right to be forgotten" case). And Equustek marks the first time a national high court had mandated de-indexing worldwide.

The implications of these decisions extend far beyond search engines. For example, a court in a given jurisdiction might issue a worldwide injunction against a social media company commanding it to prevent users from sharing "indecent" pictures or "insulting" statements. One country could order a video sharing site to remove a video that it considers "blasphemous"—a video that is likely constitutional in the United States. Another jurisdiction might make a social networking platform take down photographs of famous nude paintings uploaded by its users, leaving the company in a bind when a French court suggests that it must keep them up.

Importantly, the Equustek decision puts Google, a non-party to the underlying action, in the position of determining how to reconcile inconsistencies between laws of different nations—particularly as there is no international tribunal competent to review the decisions of any individual nation's high court. But just because courts may be comfortable burdening large companies with this onerous task does not make this a prudent precedent: unfortunately, for many smaller intermediaries and startups without the resources of a Google, it may be easier to err on the side of taking down or blocking material, resulting in an Internet where the only expression available is that which the most restrictive regime allows.

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 Mondaq.com.

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

Events from this Firm
25 Sep 2018, Conference, California, United States

We're excited to introduce Women's IP Strategy, a 2-day conference that tackles both the IP, legal as well as broader career development obstacles, risks and rewards for women lawyers working in male-dominant industries.

2 Oct 2018, Webinar, California, United States

This CLE webinar will offer suggestions to litigators to help them comply with the new GDPR during e-discovery.

10 Oct 2018, Webinar, California, United States

For the past years, 3D printing has significantly revolutionized the business industry as it provides innovations and improvement to pre-existing processes.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
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

Mondaq.com (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 www.mondaq.com

To Use Mondaq.com 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