The Supreme Court of Canada has upheld, by a 7-2 decision, an injunction issued by lower courts in British Columbia requiring Google, a non-party to the litigation, to globally remove or “de-index” the websites of the defendant so that they do not appear in any search results. This is the first such decision by Canada’s highest court.
In Google Inc. v Equustek Solutions Inc., 2017 SCC 34 (available here) Equustek sued Datalink for various intellectual property violations relating to the manufacture and sale of a networking device. Interlocutory orders were made against Datalink but it did not comply and it cut any connections it had to British Columbia (para 7). It continued its conduct, operating from an unknown location and selling its device over the internet. After some cooperative efforts with Google (de-indexing specific web pages but not Datalink’s entire websites) were unsuccessful to stop potential customers from finding Datalink’s device, Equustek sought an interlocutory injunction stopping Google from including any parts of Datalink websites in its search results worldwide. Google acknowledged that it could do this relatively easily (paras 43 and 50) but it resisted the injunction.
The issue of the British Columbia court’s in personam or territorial jurisdiction over Google featured prominently in the lower court decisions, especially that of Justice Fenlon for the British Columbia Supreme Court (available here). This is an interesting issue in its own right, considering the extent to which a corporation can be present or carry on business in a province in a solely virtual (through the internet) manner (rather than having any physical presence). There is considerable American law on this issue, including the much-discussed decision in Zippo Manufacturing v Zippo Dot Com Inc., 952 F Supp 119 (WD Pa 1997). In the Supreme Court of Canada, Google barely raised the question of jurisdiction, leading the court to state that it had not challenged the lower courts’ findings of in personam and territorial jurisdiction (para 37). So more on that issue will have to wait for another case.