Google's US court challenge to SCC "repugnant" order

By Justin Ling August 4, 20174 August 2017

Google's US court challenge to SCC

The long-running legal wrangle between Google and Equustek Solutions Inc, a B.C. technology company, is far from over.

In June, the Supreme Court of Canada upheld an injunction against Google forcing it to remove search results for a former Equustek distributor, who had been violating the company’s intellectual property through shell companies in different jurisdictions outside Canada.

Now it is Google that has changed venues to challenge the Equustek ruling. It filed a 13-page application in a California court trying to block the Canadian order.

 “Google now turns to this Court, asking it to declare that the rights established by the First Amendment and the Communications Decency Act are not merely theoretical,” the application reads. “The Canadian order is repugnant to those rights.”

Google is seeking a preliminary injunction to stop enforcement of the Canadian order as it “violates principles of international comity, particularly since the Canadian plaintiffs never established any violation of their rights under U.S. law.”

A first trial date is set for September 14, with Equustek’s arguments due next week.

Ariel Katz, and associate professor at the University of Toronto law school and the Innovation Chair in Electronic Commerce, says Google may be overstating its freedom of speech claims. Before the Supreme Court, those claims were “too strong,” and may have “backfired,” he contends.

But that doesn’t mean they don’t have a case.

“The more important issue is about the users of Google’s access information, which changes the calculus,” Katz told CBA National. “So once you recognize: Well, maybe in Canada, we think it’s illegal to see those products and advertise those products, we can’t really say that Canadians have the right to this information.”

But who is to say that Americans don’t have the right to see those products?

“I don’t think that the issue of freedom of expression has been presented to the court from this angle,” says Katz.

Daphne Keller, Director of Intermediary Liability with the Centre for Internet and Society at the Stanford Law School — and former counsel for Google who worked on this case before the court of appeal — expands on the fact that these freedom of expression issues in this case are a bit more difficult than they appear.

“Several knotty issues lurk in this blithe dismissal of expression concerns,” she writes.

She notes that the case centered very much around whether Google’s removal of the website would violate the laws in other jurisdictions. That, she says, misses the point. “Private parties like Google have no affirmative obligations to protect Internet users’ rights by indexing particular websites,” she writes. If Google has no obligation to list these sites, then there can be no conflict in law.

“To properly focus on these rights, the better question would be whether courts in other countries would violate the law by issuing or enforcing the order,” she adds.

Google’s California application, however, certainly grabs those issues more forcefully. “No one country should purport to control the global internet,” they write.

The argument may be strong, but that doesn’t mean Google is going to have an easy win.

Katz points to the LICRA v. Yahoo!, a similar case fought in 2000.

LICRA, a French group committed to fighting anti-semitism and racism, filed an order against Yahoo!, alleging that the search and auction giant — at least, at the time — was allowing Nazi memorabilia to be bought and sold on its sites. Given that selling such goods is illegal under French law, LICRA wanted those items removed and forbidden from Yahoo!’s sites. Yahoo fought back, using a very similar line of argument to Google; their servers were based in the United States, and such an order would contravene the First Amendment.

After losing its case in France, Yahoo! took the issue to a California courtroom, arguing that it ought to be freed from having to comply. After scoring a win at trial, Yahoo! lost on appeal. The court ordered Yahoo to remove listings for Nazi wares in France and worldwide.

That case, however, never made it to the Supreme Court.

Part of Yahoo!’s failure is that it was unable to prove sufficient injury to its business. Google, nevertheless, is making a similar claim.

“As the direct and proximate result of defendants’ conduct, Google has suffered and, if defendants’ conduct is not stopped, will continue to suffer, irreparable injury absent injunctive relief,” the tech giant claims in its California application.

Katz says there's a way for the California court to change, or perhaps even nullify the order, without running afoul of what the Supreme Court ruled. In fact, he said, the Canadian court seemed to invite the American system to weigh in.

Katz raises another issue he feels the courts overlooked. Did Equustek even have a case to begin with?

“I have a strong feeling that if a little more time was spent on examining the nature and scope of the underlying IP claims, the courts would have easily realized that as a matter of IP law, the injunction that Equustek sought was overly broad and unjustified,” wrote Katz on his blog.

That might be the crux of Google’s case in California: Perhaps the offending websites are not really as clear a violation of Equustek’s intellectual property as the three levels of Canadian courts concluded. Perhaps the injunction could be ignored simply because is is based on a faulty premise.

Of course, they may yet skip that line of defence.

“Apparently, Google never disputed the merit of Equustek’s claims,” Katz writes. “Maybe it didn’t want to be seen as siding with the defendants, though I think that it could have explained the underlying IP laws without taking sides. Maybe it thought that it would secure a bigger victory if it framed the case as involving hard questions.”

He notes that the line argument made the case all the more difficult.

“Hard cases make bad law,” he notes. “Unnecessarily hard cases make unnecessarily bad law.”

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