California Court to Supreme Court of Canada: F*** You (I’m paraphrasing)

In July of 2014, I wrote a post that was entitled This hugely important Google case will be going on for a while…. Well it’s more than 3 years later, and it’s still going on. I am psychic!

So the case is Google v. Equustek, and as I wrote in several posts, it is important! And not only is it important in Canada, it has recently jumped over the border and made a name for itself south of the border. Let’s take a step back before we get there.

Previously on L&O: Google v. Equustek…

In that first post I linked to above, the lower BC court (which confusingly is called the BC Supreme Court) made a unique order. That case was so long ago that the case was actually Equustek v. Jack at that point; Google was not a party. So to recap quickly, Jack and some other defendants (notably a company called Datalink) were selling counterfeit goods on the internet in violation of Equustek’s intellectual property rights. Equustek sued, and asked for that unique thing:

The plaintiffs apply for an interim injunction restraining two non-parties, Google Inc. and Google Canada Corporation, from including the defendants’ websites in search results generated by Google’s search engines

It was not just Google results in and BC in Canada they wanted blocked (in fact Google had already voluntarily de-listed the sites from Google.ca), but worldwide. Crazy plaintiffs! But the BC court said, sure what the hell, here’s your order. Google has to remove the search results to the websites selling infringing goods worldwide. This was a big deal, and you knew it wouldn’t end there…

B.C. Court of Appeals

In a post entitled B.C. Court of Appeal stretches reach to far corners of the planet, I explained that in June of 2015, the BC Court of Appeals upheld the lower court ruling. At this point Google was in fact a party, complaining to the Court of Appeals that c’mon, it’s fucking ridiculous for a little BC court to have jurisdiction over the whole world. But the court said meh, we are going to do a thorough analysis of the law (and they did), and it’s all cool. Google would go on to…

The Supreme Court of Canada

In that first post, I wrote:

I guess I better chronicle them (the cases) so when we end up in the Supreme Court of Canada in three years, I can just refer back to this post because I’m lazy

And just about exactly three years later in June 2017, the case did in fact end up in the Supreme Court! My psychic powers return. So before I get to the American court, I can just refer back to the Supreme Court post I wrote in June this year and do a quick summary.

/ checks blog archives

Hmmm. It would appear I never wrote about the case at the SCC. Unfortunately the case came out in what future historians will undoubtedly call the “Allenmendelsohn.com dark period”, where, uh, I went dark for about 3-4 months. So let’s see what the Supreme Court said.

Justice Abella, writing for seven of nine Justices, summarizes the issue thus:

The issue in this appeal is whether Google can be ordered, pending a trial, to globally de-index the websites of a company which, in breach of several court orders, is using those websites to unlawfully sell the intellectual property of another company.

Yeah we know that already. So she summarizes the facts, which we know already. She then recaps the BC Supreme Court and BC Court of Appeals decisions, which we know already. Boy this is easy!

She then introduces her actual reasoning with her conclusion:

I agree with [the previous judges] that the test for granting an interlocutory injunction against Google has been met in this case.

How does she get there? First, she talks about the law for injunctions, how judges have discretion to grant them, and the lower court was well within that discretion. She talks about interlocutory injunctions, which are injunctions that happen before final case is finally decided. There is a three-part test for when these should be granted:

1. is there a serious issue to be tried
2. would the person applying for the injunction suffer irreparable harm if the injunction were not granted; and
3. is the balance of convenience in favour of granting the interlocutory injunction or denying it

Justice Abella first says it doesn’t matter that Google was a non-party to the original case, the same test applies, and interlocutory injunctions can be granted against non-parties because the jurisprudence says as much; they happen quite often.

So Google has no problem with 1 and 2 of the test, but it’s 3 that’s the issue:

As for the balance of convenience, [Google] challenges the propriety and necessity of the extraterritorial reach of such an order, and raises freedom of expression concerns that it says should have tipped the balance against granting the order.

As for the extraterritorial reach, Justice Abella isn’t buying it:

When a court has in personam jurisdiction, and where it is necessary to ensure the injunction’s effectiveness, it can grant an injunction enjoining that person’s conduct anywhere in the world.

She cites plenty of jurisprudence to show that this is the case. Don’t ask what “in personam” means, because we both hate Latin. (ok ok it just means “of a person”, which can be a company, so here it means the court has jurisdiction over Google). She applies the principle to this case:

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.

Also, too, Google isn’t really “inconvenienced” by de-listing worldwide. Google admits as much that it is relatively easy for them to do so. Also, as for the fact that Google says this might violate international comity… / record scratch. I guess I should explain international comity. Basically it means that a country should respect the laws and court decisions of another country. Remember that, it will come up later in this post. Anyway, as for Google’s argument, Justice Abella says meh. This kind of order could have happened anywhere because most countries have intellectual property laws and respecting them (which is what this injunction is about when you get down to it) would be something most countries could get behind.

As for the freedom of expression argument, Justice Abella is  dismisses it pretty quick:

I do not see freedom of expression issues being engaged in any way that tips the balance of convenience towards Google in this case

She laughs at your freedom of expression (in this case at least):

We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.

Finally, Google says it should not be policing the internet, it should always be content-neutral and the injunction would interfere with that. Justice Abella laughs at this too:

And I have trouble seeing how this interferes with what Google refers to as its content neutral character. The injunction does not require Google to monitor content on the Internet, nor is it a finding of any sort of liability against Google for facilitating access to the impugned websites.

Pretty good points there. She concludes:

On balance, therefore, since the interlocutory injunction is the only effective way to mitigate the harm to Equustek pending the resolution of the underlying litigation, the only way, in fact, to preserve Equustek itself pending the resolution of the underlying litigation, and since any countervailing harm to Google is minimal to non-existent, the interlocutory injunction should be upheld.

There is a quality dissent from Justices Côté and Rowe. They do a decent job arguing that those 3 criteria about interlocutory injunctions were not met. They say in fact that the injunction, while called interlocutory, are actually pretty permanent. They say the Google order would not meet the test for those either. The remedy here is pretty extraordinary, and the lower court should have used some restraint here, and they didn’t. There is some other good stuff too, but because we’ve got to get the important follow-up case in the USA and this dissent is not really law, let’s move on.

United States District Court, Northern District of California

Well Google was not going to take this lying down. We now get to the fun part. Google took its toys and went home to California, and walked into a court in July of this year and said “those crazy Canucks, they know nothing about how things work down here in MAGA-land.” More precisely (and quoting accurately), Google asked for “a declaratory judgment that the Canadian court’s order cannot be enforced in the United States and an order enjoining that enforcement”. As the first step in that case is asking for a preliminary injunction that says the same thing. Google argues that:

the Canadian order is “unenforceable in the United States because it directly conflicts with the First Amendment, disregards the Communication Decency Act’s immunity for interactive service providers, and violates principles of international comity.”

And guess what? (Well I guess you know from my headline) The U.S. District Court said sure and said screw you to the Supreme Court of Canada. Let us count the ways! Well really there is only a couple of ways, because the Court’s order is pretty darn short. First it lays out its own laws for granting a preliminary injunction. It has a four-step test, but they combine it into two:

1. Likelihood of Success on the Merits

Google has a fine chance! See, there is this section 230 of the Communications Decency Act in the United States which is quite famous. It even has its own Wikipedia entry! Quite a coup for a single section of a law to have its own Wikipedia entry. Basically parties like Google, Facebook and Twitter are immune from liability for what their users do on their systems. They are what’s called “providers of interactive computer services”. It is supposed to protect free speech in the internet. And it does! In this case (well, in all cases really), to benefit from s. 230:

Google must show that (1) it is a “provider or user of an interactive computer service,” (2) the information in question was “provided by another information content provider,” and (3) the Canadian order would hold it liable as the “publisher or speaker” of that information.

Here, Google satisfies all three elements

So yes, Google is likely to be successful in getting its declaratory judgment because of its s.230 immunity. And because they are going to win (probably) on that, “it is unnecessary to address Google’s arguments based on the First Amendment and international comity.”

2, 3, and 4 – Irreparable Harm, Balance of the Equities, and the Public Interest

The Court goes back to the s. 230 well for each of these three. Harm:  “Google is harmed because the Canadian order restricts activity that Section 230 protects”. And again: “the balance of equities favors Google because the injunction would deprive it of the benefits of U.S. federal law” (i.e. s. 230). And again: “An injunction would also serve the public interest. Congress recognized that free speech on the internet would be severely restricted if websites were to face tort liability for hosting user-generated content” (which they don’t, because of s. 230.)

And to sum it all up, basically s. 230 rulezzz and free speech is great:

The Canadian order would eliminate Section 230 immunity for service providers that link to third-party websites. By forcing intermediaries to remove links to third-party material, the Canadian order undermines the policy goals of Section 230 and threatens free speech on the global internet.

Superterriffic happy hour analysis time

Boy did I have some analysis ready to go! It included a massive rant about s. 230 and the notion of international comity, and how this decision fucks with it like it’s nobody’s business. I was going to swear like a drunken sailor (or, you know, me) and bitch and whine about the many stupidities here. Don’t get me wrong – I was not particularly happy with the SCC Equustek decision. I liked a lot of what the dissent said, and I was against the worldwide order form the get-go (go back and read the first post). But it’s the Supreme Court of Canada, it’s the law of the land, and it is a decision that should be respected by the U.S. Courts (COMITY, dammit!) unless there is a really good reason not to (there isn’t). I was really going to rip into this judgment.

However, literally as I was typing this post, Barry Sookman published:

US court thumbs its nose at Supreme Court of Canada: Google v Equustek

Barry is a classy lawyer at a big fancy law firm in Toronto, so he can’t swear in his headlines like I can. But we have the same idea. And frankly, his analysis is so spot on and so detailed, it would be pointless for me to go on and on. Just go read what he says. He is saying the same thing I would have, about s. 230 and comity, but in a much more dignified, researched, and intelligent way than I would have done. And he offers the same caveat I would have:

Of course, all of the criticisms made here… are not intended as any criticism of Judge Davila [the judge in California]. The preliminary injunction motion was not defended by Equustek and all Judge Davila had to inform his decision was what Google and its friendly and usual Amici (EFF and Wkipedia) put before him.

Exactly. And for sure this case is not over. This was only a preliminary injunction, there will still be a final judgment and maybe appeals, and Equustek may show up for something in the future. The saga continues.