June 2017 – Page 10 – news.buyenne.com

Back in 2014, the case of Equustek Solutions Inc. v. Jack saw two Canadian entities battle over stolen intellectual property used to manufacture competing products.

Google had no direct links to the case, yet it became embroiled when Equustek Solutions claimed that Google’s search results helped to send visitors to websites operated by the defendants (former Equustek employees) who were selling unlawful products.

Google voluntarily removed links to the sites from its Google.ca (Canada) results, but Equustek demanded a more comprehensive response. It got one.

In a ruling handed down by a court in British Columbia, Google was ordered to remove the infringing websites’ listings from its central database in the United States, meaning that the ruling had worldwide implications.

Google filed an appeal hoping for a better result, arguing that it does not operate servers in British Columbia, nor does it operate any local offices. It also questioned whether the injunction could be enforced outside Canada’s borders.

Ultimately, the British Columbia Court of Appeal disappointed the search giant. In a June 2015 ruling, the Court decided that Google does indeed do business in the region. It also found that a decision to restrict infringement was unlikely to offend any overseas nation.

“The plaintiffs have established, in my view, that an order limited to the google.ca search site would not be effective. I am satisfied that there was a basis, here, for giving the injunction worldwide effect,” Justice Groberman wrote.

Undeterred, Google took its case all the way to the Supreme Court of Canada, hoping to limit the scope of the injunction by arguing that it violates freedom of expression. That effort has now failed.

In a 7-2 majority decision released Wednesday, Google was branded a “determinative player” in facilitating harm to Equustek.

“This is not an order to remove speech that, on its face, engages freedom of expression values, it is an order to de-index websites that are in violation of several court orders,” wrote Justice Rosalia Abella.

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

With Google now required to delist the sites on a global basis, the big question is what happens when other players attempt to apply the ruling to their particular business sector. Unsurprisingly that hasn’t taken long.

The International Federation of the Phonographic Industry (IFPI), which supported Equustek’s position in the long-running case, welcomed the decision and said that Google must “take on the responsibility” to ensure it does not direct users to illegal sites.

“Canada’s highest court has handed down a decision that is very good news for rights holders both in Canada and around the world. Whilst this was not a music piracy case, search engines play a prominent role in directing users to illegal content online including illegal music sites,” said IFPI CEO, Frances Moore.

“If the digital economy is to grow to its full potential, online intermediaries, including search engines, must play their part by ensuring that their services are not used to facilitate the infringement of intellectual property rights.”

Graham Henderson, President and CEO of Music Canada, which represents Sony, Universal, Warner and others, also welcomed the ruling.

“Today’s decision confirms that online service providers cannot turn a blind eye to illegal activity that they facilitate; on the contrary, they have an affirmative duty to take steps to prevent the Internet from becoming a black market,” Henderson said.

But for every voice of approval from groups like IFPI and Music Canada, others raised concerns over the scope of the decision and its potential to create a legal and political minefield. In particular, University of Ottawa professor Michael Geist raised a number of interesting scenarios.

“What happens if a Chinese court orders [Google] to remove Taiwanese sites from the index? Or if an Iranian court orders it to remove gay and lesbian sites from the index? Since local content laws differ from country to country, there is a great likelihood of conflicts,” Geist said.

But rather than painting Google as the loser in this battle, Geist believes the decision actually grants the search giant more power.

“When it comes to Internet jurisdiction, exercising restraint and limiting the scope of court orders is likely to increase global respect for the law and the effectiveness of judicial decisions. Yet this decision demonstrates what many have feared: the temptation for courts will be to assert jurisdiction over online activities and leave it to the parties to sort out potential conflicts,” Geist says.

“In doing so, the Supreme Court of Canada has lent its support to global takedowns and vested more power in Internet intermediaries, who may increasingly emerge as the arbiters of which laws to follow online.”

Only time will tell how Google will react, but it’s clear there will be plenty of entities ready to test the limits and scope of the company’s responses to the ruling.

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