New Developments in the Matter of Google Inc. v. Equustek Solutions Inc.

The judicial saga of Google Inc. v. Equustek, which we summarized in our August 7 bulletin1, has taken a new twist.

To recap, on June 28, 20172, the Supreme Court of Canada upheld an injunction with extraterritorial effect against Google, a non-party to litigation between Equustek Solutions Inc. and Datalink Technologies Gateway Inc.

In its reasons for judgment, written by the Honourable Rosalie Abella, the majority of the Court acknowledged the possibility that the injunction could cause Google to violate the laws of another jurisdiction, “including interfering with freedom of expression”. Thus, if another jurisdiction found that the injunction was at odds with its fundamental values, Google could “apply to the British Columbia courts to vary the interlocutory order accordingly”3.

This invitation did not go unheeded. Google proceeded to institute proceedings before the U.S. District Court for the Northern District of California in order to prevent the injunction from being applied in the United States. In support of its motion for an interlocutory stay of the injunction, Google repeated its arguments, raised unsuccessfully before the Canadian courts, regarding infringement of freedom of expression and violation of international comity:

“Google argues that the Canadian order is unenforceable in the United States because it directly conflicts with the First Amendment, disregards the Communication Decency Act’s immunity for interactive service providers, and violates principles of international comity.”

Google thus also pleaded the principle of the immunity of interactive computer service providers provided for in section 230(c)(1) of the Communication Decency Act, whereby such service providers cannot be held liable for content created by third parties4.

Based on these arguments5, on November 2, 2017, the U.S. federal court granted an interlocutory stay of the injunction6, and then went on to grant a permanent stay on December 147.

The extraterritorial scope of the Canadian injunction has thus encountered its first limitation.

Written in collaboration with articling student Caroline Cassagnabère.