“You don’t have the power to do that.”

That’s a hard argument to make to a judge. It is an even harder argument to make before the nine judges of the Supreme Court of Canada.

That’s essentially what Google needed to do in Google Inc. v. Equustek Solutions Inc. Google was trying to prevent the court from requiring it to de-index websites of a company called Datalink Technologies Gateways so that they would not show up in Google search results anywhere in the world.

Google was unsuccessful. Essentially, Google was conscripted to help the court enforce its orders against Datalink. The trouble for Google was that it is just too successful at search, which makes it irresistible as a target to assist the court whenever search results really matter.

Google had a good argument. After all, the dispute was between Equustek Solutions and its former distributor Datalink Technologies Gateways. Google had nothing to do with that. Equuestek thought that Datalink  was passing off Equuestek ‘ products as though they were actually Datalink’s products. Equuestek obtained orders against Datalink but Datalink did not fully comply with the orders and then simply abandoned its defence of the action. Datalink was continuing to sell the products from unknown locations.

In an effort to shut down Datalink, Equuestek wanted Google to stop having Datalink show up in search results. If Equuestek could not shut down Datalink’s websites, it would prevent those websites from being found easily. Google was willing to cooperate if Equuestek could get an order prohibiting Datalink to cease operating or carrying on business through any website. Google would then de-index pages on Datalink’s website when searched using the Canadian Google.ca site.

The trouble was that de-indexing individual pages was not sufficient because Datalink just moved the content to other pages. What Equuestek needed was de-indexing of all of Datalink’s websites. Moreover, Google only de-indexed the pages on its Google.ca site and not for searches conducted on Google.com or other sites.

Seven of the judges couldn’t sit by and watch Datalink flout the orders of the British Columbia court. They decided that the only way to prevent the harm to Equuestek was to issue the global injunction. In those judges’ view, Google hadn’t provided any evidence that complying with the order worldwide would cause it to breach any law anywhere in the world. It hadn’t shown that complying with the order was going to cause it any particular harm or extraordinary expense.

Two of the judges thought this went to far. In their view, Equuestek was basically getting what it wanted (shutting Datalink down), without a trial. Google was being forced to do something that other search engines were not. The list of websites was likely to change so everyone was going to be back in court. In their view, Equuestek could seek orders against the Internet Service Providers that were enabling the Datalink websites.

Lessons for the Future: This case will be a tool in attempting to deal with online disputes — whether it be the right to be forgotten, defamation, or intellectual property disputes or others. However, a key reason why Equuestek prevailed was that Datalink had ignored the B.C. court’s prior orders and Equuestek was unable to locate Datalink. This type of order should be viewed by judges as one of last resort.

Read the full decision available on CanLII –  Google Inc. v. Equuestek Solutions Inc., 2017 SCC 34 (CanLII).

Categories: Injunctions