On 5 October 2016, ARTICLE 19, with Human Rights Watch, Open Net Korea, Software Freedom Law Center and Center for Technology and Society, filed an amicus brief to the Supreme Court of Canada in Google Inc vs Equustek Solutions Inc. concerning a worldwide injunction ordering it to remove websites from Google search results.
The case originated in 2011 when Equustek, a Canada-based industrial networking company, began proceedings in the Supreme Court of British Columbia for an injunction against their competitor, Datalink Technologies. Equustek argued that Datalink had infringed on Equustek’s intellectual property rights with products sold under the Datalink brand. Datalink was ordered to stop selling the products in question. However, it continued its business in a clandestine manner through various websites and relied on search engines – including Google – to direct customers to these sites, Canadian authorities were unable to enforce the ruling. Also, every time that Google blocked access to a specific webpage, the defendants would move the content to a new webpage within their site.
The plaintiffs successfully applied to the Chambers Judge in the Supreme Court of British Columbia for an injunction prohibiting Google from delivering search results pointing to the defendants’ websites. Google appealed, arguing that the injunction was beyond the jurisdiction of the Canadian court and that it had an impermissible extraterritorial reach.
British Columbia’s highest court dismissed an appeal from Google in June 2015, leaving Google with one final avenue of recourse. In February of this year, the Supreme Court of Canada (SCC) agreed to hear Google’s appeal.
In the amicus brief, ARTICLE 19 and partners argue that the impact of the injunction order in this case is not limited to British Columbia or Canada, but has immediate and global impact on the freedom of expression everywhere. In granting the injunction order, the British Columbia courts failed to adequately consider the deleterious impact to freedom of expression and, despite its international application, failed to consider international human rights law or policy. Consequently, the precedent set by the injunction order poses a significant threat to international human rights, including the international right to freedom of expression.
Hence, we are asking the Canadian Supreme Court that, when deciding the case, to consider the international law principles of state sovereignty and freedom of expression.