Recently, I successfully secured an injunction against Google for the de-indexing of search results that came up when our client's name was searched online. The problem, in particular, was that the search results were defamatory, severely damaged our client's professional reputation and, eventually, caused him to lose the career he had spent decades building. In winning the injunction order, I leaned heavily on the Supreme Court of Canada's 2017 decision in Google Inc. v. Equustek Solutions Inc. ("Equustek").
The issue in Equustek was whether Google could be ordered to globally "de-index" the websites of a company which, in breach of several court orders, was using those websites to illegally sell the intellectual property of another company. De-indexing is the process by which a particular webpage, image, or other online resource is removed from a search engine's results page when your product, name or business is entered as the search term. It prevents the content from being linked prominently to your product, name or business in search results.
Equustek Solutions Inc. is a small technology company in British Columbia that manufactures networking devices. Datalink was a distributor of Equustek's products. Unbeknownst to Equuestek, Datalink was re-labelling one of Equustek's products and selling it as its own. Datalink was also using confidential information belonging to Equustek to design and manufacture a competing product, the GW1000. When Equustek discovered this, it terminated the distribution agreement and demanded that Datalink delete all references to Equustek's products and trademarks on its websites. Datalink responded by leaving British Columbia and, in defiance of multiple court orders to stop, it continued to sell Equustek products from an unknown location outside of Canada. GW1000, for example, was being sold to customers all over the world. Equustek's business started to decline, as a result.
Not knowing where Datalink was, Equustek approached Google and requested that it de-index the Datalink websites. Google refused.
It is important to note that while Internet search services are free, Google makes money by selling advertising space on the webpages that display search results. In addition, Google controls between 70-75% of the global searches on the Internet. Datalink was only able to survive – at the expense of Equustek's survival – by using Google's search engine, which directed potential customers to Datalink websites with its counterfeit products.
The Supreme Court in Equustek applied the RJR MacDonald Inc. v. Canada test to determine whether to grant an interlocutory injunction against Google ordering it to de-index Datalink websites worldwide:
- Is there a serious issue to be tried;
- Would Equustek suffer irreparable harm if the injunction were not granted; and
- Is the balance of convenience in favour of granting the injunction or denying it?
Google conceded that there was a serious claim and that Equustek was suffering irreparable harm due to the sale of GW1000. Google argued, however, that non-parties cannot be the subject of an interlocutory injunction and Google should not be mandated to act in a dispute between Equustek and Datalink. The Supreme Court, in a 7-2 split decision, disagreed.
The majority found that Google was facilitating Datalink's breach of court orders by enabling Datalink to continue to carry on its illegal business through the Internet. Google's assistance in stopping this was necessary.
Google's next argument was that, if the injunction was granted, it should be limited to Canada (or google.ca) alone – the Court did not have the jurisdiction to order Google to act outside of Canada. The Court, again, disagreed – worldwide de-indexing was necessary.
Abella J. for the majority stated at para. 41, "[t]he Internet has no borders – its natural habitat is global." Indeed, purchasers outside Canada could easily continue purchasing from Datalink's websites, and Canadian purchasers could easily find Datalink's websites on google.com.
With respect to the last branch of the test – the balance of convenience – the Court found that a worldwide order did not require Google to take any steps around the world, but only where its search engine is controlled. The Court found that this is something Google regularly does voluntarily with relative ease (e.g., with websites containing child pornography and hate speech).
What about freedom of expression?, Google argued. To that, the Court succinctly retorted at para. 48, "We have not, to date, accepted that freedom of expression requires facilitation of the unlawful sale of goods."
The Court underlined that Google was not liable for the harm to Equustek, but it was a determinative player in allowing the harm to occur. Any countervailing harm to Google was minimal to non-existent.
The Court held that when non-parties are so involved in the wrongful acts of others that they facilitate the harm, even if they themselves are not guilty of wrongdoing, they can be subject to interlocutory injunctions. Google was ordered to remove the Datalink websites worldwide.
The Equustek decision has illuminated the issue of the responsibility of search engines for an individual's reputation. Indeed, courts have recognized that the same principles apply when an individual or business is the victim of illegal conduct online, including defamation.
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