<b><i>Online Extra</b></i><br> Google Sues to Block 'Repugnant' Canadian Court Decision

Google Inc. has filed suit in U.S. federal court seeking to block enforcement of a decision by the Supreme Court of Canada that would require the search giant to delist certain search results worldwide.

Google, represented by attorneys at Quinn Emanuel Urquhart & Sullivan, argues in its complaint that an injunction issued in late June by Canada's high court violates its rights under the First Amendment. It also says the decision runs against Section 230 of the Communications Decency Act, a law that gives broad immunities to web companies that host third-party content.

“The Canadian order is repugnant to those rights, and the order violates principles of international comity, particularly since the Canadian plaintiffs never established any violation of their rights under U.S. law,” says the company's complaint, filed in federal court in San Jose on Monday by Quinn Emanuel partner Margret Caruso.

“Pursuant to well-established United States law, Google seeks a declaratory judgment that the Canadian court's order cannot be enforced in the United States and an order enjoining that enforcement,” the complaint adds.

The named defendants are Canadian company Equustek Solutions Inc. and related entities. In 2012, Equustek asked Google to stop indexing links to the websites of an Equustek competitor called Datalink selling a networking device that allegedly ripped off Equustek's designs and source code. Google initially declined, but later that year agreed to pull down more than 300 individual webpage links associated with Data­link from its Canada-facing site, www.google.ca.

That did not satisfy Equustek. The company sued again, and in June 2014 a Canadian trial court ordered Google to delist Data­link search results not only from its Canada-facing search engine, but from every country where Google offers search. Google fought the decision on appeal. On June 28 of this year, however, the Supreme Court of Canada upheld the order.

According to Google's complaint, Equustek's counsel saw the fight in the U.S. coming — telling the Canadian high court that the enforceability of its decision down south of the border would be “a question for U.S. courts.”

Robert Fleming, a Vancouver solicitor and Equustek's lead counsel in the case in Canada, declined to comment when reached by email.

The Canadian Supreme Court case drew a slew of filings from organizations and companies on both sides of the issue. A coalition of First Amendment groups and news outlets weighed in on behalf of Google, arguing that a sweeping, global injunction poses dangers for free speech.

“If Canadian courts can do this blithely, limitless jurisdiction could mean that repressive regimes would seek to do the same — thereby imposing their national laws everywhere, including in Canada, to the detriment of a free and autonomous press and the public's right to receive information,” they said in a brief submitted by lawyers at Blake, Cassels & Graydon.

Other groups representing the recording and publishing industries, meanwhile, have supported the Equustek decision as a win against online piracy. The head of Music Canada, for instance, cheered the Canadian high court ruling last month as confirming that online service providers “cannot turn a blind eye to illegal activity that they facilitate; on the contrary, they have an affirmative duty to take steps to prevent the Internet from becoming a black market.”

Google's lawsuit contends that because it does not create the content from Datalink's website, it is not the “publisher” and therefore is exempt from liability under Section 230. “The fact that Google's search results may contain snippets from third-party websites such as Datalink's does not transform those snippets into content created by Google,” its complaint says.

More fundamentally, the company also argues that it has a First Amendment right to list links to Datalink's websites and that ordering the company to delist them is overbroad and impinges on that right. Google also notes that Equustek has not sought similar injunctions against other search engines, such as Microsoft's Bing or Yahoo, or social media sites listing third-party content.

“The existence of the Datalink websites is, and remains, a matter of public record,” Google argues. “Equustek cannot show that it has no alternatives available other than enjoining Google's search results outside of Canada.”

***** Ben Hancock is a San Francisco-based reporter for Internet Law & Strategy's ALM siblings The Recorder and Law.com. He writes about the future of litigation, including third-party finance, legal data analytics, and artificial intelligence in the law. Contact Ben at [email protected]. On Twitter: @benghancock.