California Court Enjoins Canadian Court's Global De-listing Order To Google As Contrary To CDA

Author:Mr Jeffrey Neuburger
Profession:Proskauer Rose LLP
 
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In a decision that sets up a potential international comity showdown, a California district court granted Google's request for a preliminary injunction preventing enforcement in the U.S. of a Canadian court order that compelled Google to globally de-list certain search results of a former distributor that had allegedly used its websites to unlawfully sell the defendant Equustek Solutions's ("Equustek") intellectual property. (Google LLC v. Equustek Solutions Inc., 2017 WL 5000834 (N.D. Cal. Nov. 2, 2017)).

In granting Google's request for a preliminary injunction, the court found that Google likely satisfied all three elements of qualifying for immunity under Section 230 of the Communications Decency Act, 47 U.S.C. §230(c)(1) (the "CDA" or "Section 230") as a service provider that linked to third-party content, and that the Canadian court's order implicated online free speech concerns. Indeed, the court concluded its opinion with language that surely buoyed many online providers and open internet advocates that had previously expressed concerns about the extraterritorial effort of the Canadian order:

"By forcing intermediaries to remove links to third-party material, the Canadian order undermines the policy goals of Section 230 immunity and threatens free speech on the global internet."

In 2011, Equustek filed suit in Canada against Datalink Technology Gateways ("Datalink") alleging certain intellectual property violations, and obtained several Canadian court orders against Datalink. In 2012, after discovering Datalink was violating court orders and carrying on its business at an unknown location, Equustek asked Google to de-list Datalink's websites from search results. Google refused and Equustek moved for a court order. The Canadian court granted Equustek's request for injunctive relief against Datalink and, as a result, Google de-indexed over 300 Datalink webpages from appearing in its Canada-specific search results at www.google.ca.

Google did not, however, remove Datalink websites from search results targeted to users outside of Canada, such as at google.com. Equustek sought another Canadian court order requiring Google to remove Datalink websites from its global search results. In 2014, a Canadian trial court issued an order requiring Google to delist Datalink search results worldwide —an order which was affirmed by an appeals court - prompting Google to comply with the order. On further appellate review, in June 2017, the Canadian Supreme...

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