United States: The Coming Border Wars: U.S. Court Decision Refusing To Enforce Canadian Court Order Highlights The Growing Balkanization Of The Internet

Does a search engine operator have to delist websites hosting, without authorization, your trade secret materials or other intellectual property? The answer may depend on where you sue—just ask Google. The U.S. District Court for the Northern District of California recently handed the company a victory over plaintiff Equustek Solutions Inc. in what has turned into an international battle where physical borders can have very real consequences on the Internet.

The dispute began when a rival company, Datalink, allegedly misappropriated Equustek's trade secrets in developing competing products. Equustek also alleged that Datalink misled customers who thought they were buying Equustek products. In 2012, Equustek obtained numerous court orders in Canada against Datalink. Datalink refused to comply, and Canadian court issued an arrest warrant for the primary defendant, who has yet to be apprehended.

In September 2012, Equustek asked Google to delist search results for Datalink; Google declined this request. Equustek then sought a court order against Google in Canada and prevailed, resulting in Google removing 300 Datalink websites from search results generated by the Canadian version of its site, located at www.google.ca. Google, however, did not take similar steps with respect to U.S. and other non-Canadian versions of its site, so the Datalink websites continued to appear in search results conducted by users outside of Canada.

Equustek returned to the Canadian court, this time to seek an order compelling Google to remove the Datalink-related search results globally so that Datalink results would not appear for any Google users, regardless of their location. Equustek once again prevailed, and Google appealed to the Court of Appeal for British Columbia. That court, and later the Supreme Court of Canada, affirmed the trial court's order.

Google then brought the battle to the United States; in July 2017, it commenced an action in the U.S. District Court for the Northern District of California seeking a declaratory judgment that the Canadian court order cannot be enforced in the United States and an injunction against the enforcement of such order. (Equustek did not submit an opposition brief.)

In support of its preliminary injunction motion, Google's primary arguments were that the Canadian order (1) ignores the Communication Decency Act's immunity for interactive service providers (2) directly conflicts with the First Amendment and (3) violates principles of international comity.

In evaluating Google's motion, a significant portion of the court's analysis addressed the likelihood of Google's success on the merits. The court focused on Section 230 of the Communications Decency Act, which states that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Citing the Ninth Circuit's en banc decision in the Roommates.com case, the court noted that Section 230 "immunizes providers of interactive computer services against liability arising from content created by third parties."

The court found that Google met all three requirements to qualify for Section 230 immunity. First, the court noted that there is no question as to whether Google is a "provider" or an "interactive computer service," citing previous cases that had so held and noting that the term "interactive computer service" can mean any information service, system or access software provider that allows multiple users to access a computer server.

Second, the court noted that the way that Google's web caching and search result aggregation process works makes it such that Datalink—and not Google—is the entity "providing" the information in question. The court characterized Google's role as that of a passive intermediary providing access to the material in question.

Finally, the court found that enforcement of the Canadian order would hold Google liable as "publisher or speaker" of the infringing material on Datalink's websites. The court quoted the Supreme Court of Canada's justification for the order, which characterized Google as "the determinative player in allowing the harm to occur," and observed that the Ninth Circuit considers any claim requiring an intermediary to remove third-party content as treating that intermediary as a publisher.

Turning to the remaining three factors for granting a preliminary injunction—irreparable harm, balance of the equities and the public interest—the court sided with Google on all three factors.

It found that depriving Google of Section 230 protection harmed Google, and that the balance of equities favors Google because the injunction would deprive it of the benefits of U.S. federal law.

It also noted that granting Google's requested injunction would serve the public interest in that it would be in keeping with Congress's finding that tort liability for websites' hosting third-party content would severely limit free speech on the Internet. The court pointed out that Section 230 was specifically enacted in service of this proposition and underscored the fact that a strong policy in favor of fostering free speech online would be hampered by holding Google responsible for the third-party material it displays in its search results.

According to the court, "The Canadian order would eliminate Section 230 immunity for service providers that link to third-party websites . . . [and] undermines the policy goals of Section 230 and threatens free speech on the global internet."

The court's decision highlights the power of the Section 230 safe harbor and its critical role in facilitating the free flow of information online. However, if we step back to look at the larger issue, the Google-Equustek dispute—having generated conflicting court decisions in Canada and the United States—suggests that we may be moving toward an increasingly patchwork Internet rather than the borderless, monolithic information superhighway of the past few decades.

In the near future, what you see online may depend on where you live.

Further, as the Internet becomes more Balkanized, we may see situations where the strictest, most burdensome portion of the patchwork seeks to force all of the others to follow in its stead. Case in point: Europe's emerging "right to be forgotten." At first, in response to EU consumers seeking to exercise this right, Google had offered to scrub relevant search results from EU-versions of its website, but, following continued pressure from the EU, it agreed to filter the results shown to EU residents regardless of which version of the Google site they searched (so that, for example, Google.com would show the same scrubbed results to an EU resident as Google.fr). According to France, however, this arrangement is still not enough, and Google should scrub the results globally—even for users who reside in the many countries that do not recognize the right to be forgotten.

What comes of this fight has yet to be known, but what is unmistakable is the slow and steady shift to an Internet that differs across borders. As this shift continues, U.S. laws aimed at facilitating online speech—such as Section 230 and the DMCA's copyright safe harbors—are increasingly likely to butt heads with other countries' laws seeking to regulate and even censor online speech.

* * *

For other Socially Aware blog posts regarding the CDA Section 230 safe harbor, please see the following: Lawsuit Against Online Dating App Grindr Dismissed Under Section 230 of the Communications Decency Act; 2018: Predictions From Socially Aware's Editors and Contributors; Snapchat Clocks Section 230 Win in Speed Filter Case; The Decline and Fall of Section 230?; In a Rough Year for CDA Section 230, Manchanda v. Google Provides Comfort to Website Operators; and Yelp Case Shows CDA §230 Still Has Teeth.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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