Google, LLC v. Equustek Solutions, et al., No. 5:17-cv-04207-EJD (N.D. Cal.). Order granting injunctive relief entered November 2, 2017.
Two Canadian computer hardware sales and distribution entities became embroiled in a trade secrets controversy. Defendant here, Equustek Solutions, was successful as plaintiff in Canada against its rival Datalink, but was not successful in locating Datalink to pursue the remedies it had secured.
In Canada, Equustek sought an order directing Google to remove website links relating to Datalink. Google refused. However, when Equustek obtained injunctive relief against Datalink, Google removed more than three hundred Canadian-based result links regarding Datalink.
Equustek sought and was granted an injunction directing Google to delist globally all links to Datalink. Google appealed to the highest levels of Canadian courts. Google lost.
Google initiated an action for declaratory relief in federal court in the Northern District of California, seeking to enjoin enforcement of the Canadian order. Google argued that the Canadian order ought to be unenforceable in the United States because it disregards the immunity afforded Google by the Communications Decency Act Section 230, which immunizes interactive service providers from liability for content provided by others.
The Canadian courts saw Google as the primary source of information provided about Datalink, which would make Google a content provider for Section 230 purposes. The addition or subtraction of information such as datalinks is an editorial function. However, as Google is not a content provider but has been treated by Canada as such, the Canadian order directing Google to remove links to Datalink globally may be enjoined, as it is in derogation of the immunities provided by Section 230.
The federal district court noted that the Ninth Circuit has rejected the characterization of service providers as publishers:
“The Ninth Circuit has held that, regardless of the underlying cause of action, a claim treats an intermediary as a publisher when it requires the intermediary to remove third-party content. Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1103 (9th Cir. 2009). The Barnes panel held that “removing content is something publishers do, and to impose liability on the basis of such conduct necessarily involves treating the liable party as a publisher of the content it failed to remove.” Id. at 1103. The Canadian order treats Google as a publisher because the order would impose liability for failing to remove third-party content from its search results.”
The federal court was unhesitating in what it perceived to be the perils of the Canadian court’s conclusion, which in its view eviscerates Section 230. Requiring internet service providers to remove third party content would transform them into content providers and strip them of the protections of Section 230, which protections are intended to foster diverse exchanges of information.
Not shirking from its perception of danger, the United States District Court concluded that Canada’s order “threatens free speech on the global internet.”
Some offhand editorializing: the court appears to have been more than a little feisty, given that Equustek did not submit a brief in opposition to Google’s motion for injunctive relief. One defendant wrote to Google’s counsel and to the clerk of the court to stating that there would be no defense to Google’s suit, but also opining that Google’s motion for injunctive relief was unfair.
And a note about what was not reached: because Google was successful on its Section 230 motion, the court did not find it necessary to consider questions of international comity.