On 12 April 2011, Equustek Solutions Inc. brought an action against inter alia Datalink Technology Gateways Inc. and Datalink Technologies Gateways LLC (together ‘Datalink’). Equustek Solutions Inc. was a small technology company, established in the Canadian province of British Columbia, that manufactured computer technology that enabled different industrial devices to communicate with each other. Datalink was a distributor of Equustek’s products. Equustek Solutions Inc. claimed that Datalink, after re-labelling one of Equustek’s products, sold it as its own; and that Datalink sold to customers who had ordered an Equustek product, a product that it had manufactured itself, by using Equustek’s trade secrets. On 23 September 2011, the trial court issued an injunction order in favour of Equustek Solutions Inc. The court ordered Datalink inter alia to publish on its websites that it no longer acted as a distributor for Equustek Solutions Inc.; to return to Equustek any documentation (including source codes) that belonged to Equustek; and to hand over to Equustek a list of all customers who had bought the products. When Datalink did not comply with this order, Equustek Solutions Inc. obtained several other injunction orders against Datalink, including an injunction that froze Datalink’s worldwide product inventory. This was to little avail for Equustek Solutions Inc., as Datalink did not cease its activities, but continued ‘to carry on its business from an unknown location, selling its impugned product on its websites to customers all over the world’.
In September 2012, Equustek Solutions Inc. asked Google Inc. to ‘de-index’ Datalink’s websites. Google Inc. was reluctant to do so as, according to is internal policy, ‘Google only voluntarily de-indexes individual webpages, not entire websites’. Google Inc. advised Equustek Solutions Inc. that it would follow up on a court decision prohibiting Datalink to do business on the internet and would then remove specific relevant webpages. In December 2012, Equustek Solutions Inc. did obtain such a court order against Datalink, ordering Datalink to ‘cease operating or carrying on business through any website’. In December 2012/January 2013, Google Inc. informed Equustek Solutions Inc. that it had de-indexed 345 webpages. However, Equustek Solutions Inc. was dissatisfied with this result as it was of the opinion that (1) ‘de-indexing webpages but not entire websites was ineffective since Datalink simply moved the objectionable content to new pages within its websites, circumventing the court orders’, and (2) because Google’s de-indexing had been limited to its search engine google.ca. Equustek Solutions Inc. brought an action against Google Inc. asking the court to order an injunction that would stop Google Inc. ‘from displaying any part of the Datalink websites on any of its search results worldwide’. The trial court awarded this request, based on the argument that ‘irreparable harm was being facilitated through Google’s search engine; that Equustek had no alternative but to require Google to de-index the websites; that Google would not be inconvenienced; and that, for the order to be effective, the Datalink websites had to be prevented from being displayed on all of Google’s search results, not just google.ca’. This decision, in spite of the ‘extraterritorial effect’ it had, was upheld by the Court of Appeal of British Columbia.
Google Inc. appealed to the Supreme Court of Canada. The Supreme Court, by a majority decision delivered by Abella J., dismissed the appeal. The Supreme Court underlined that Google Inc. did not dispute that Equustek Solutions Inc. suffered irreparable harm, but advanced as arguments inter alia ‘that the injunction issued against it is not necessary to prevent that irreparable harm, and that it is not effective in so doing. Moreover, it argues that as a non-party, it should be immune from the injunction’, as well as that the order incorrectly had extraterritorial effect. As concerns Google’s arguments the Supreme Court considered:
- ‘Google’s first argument is, in essence, that non-parties cannot be the subject of an interlocutory injunction. With respect, this is contrary to the jurisprudence’. And: ‘the interlocutory injunction in this case flows from the necessity of Google’s assistance in order to prevent the facilitation of Datalink’s ability to defy court orders and do irreparable harm to Equustek. Without the injunctive relief, it was clear that Google would continue to facilitate that ongoing harm’.
- ‘Google’s next argument is the impropriety of issuing an interlocutory injunction with extraterritorial effect. But this too contradicts the existing jurisprudence’. And: ‘The problem in this case is occurring online and globally. The Internet has no borders – its natural habitat is global. The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates – globally. […] the majority of Datalink’s sales take place outside Canada. If the injunction were restricted to Canada alone or to google.ca, as Google suggests it should have been, the remedy would be deprived of its intended ability to prevent irreparable harm’.
The judgment of the Supreme Court of Canada can be found at: www.scc-csc.ca (English), cases, judgments on appeals.