UPDATE: On April 16, 2018, the British Columbia Supreme Court denied Google’s request to amend the Canadian delisting injunction based on the argument that the injunction would “require it to violate the laws of another jurisdiction, including interfering with freedom of expression.” (Equustek Solutions Inc. v. Jack, 2018 BCSC 610 (Apr. 16, 2018)). The Canadian court held that the effect of the California district court order (based upon CDA immunity) is that no action can be taken against Google to enforce the injunction in U.S. courts – but that would not restrict the ability of a Canadian court to issue its own orders “directed to parties over whom it has personal jurisdiction.”
“The U.S. decision does not establish that the injunction requires Google to violate American law. That would be the case if, for example, the [defendants] obtained an order from a U.S. court requiring Google to link to their websites. But there is no suggestion that any U.S. law prohibits Google from de-indexing those websites, either in compliance with the injunction or for any other reason. Absent the injunction, Google would be free to choose whether to list those websites and the injunction restricts that choice, but injunctions frequently restrain conduct that would otherwise be prima facie lawful. A party being restricted in its ability to exercise certain rights is not the same thing as that party being required to violate the law.”
In a decision that sets up a potential international comity showdown, a California district court granted Google’s request for a preliminary injunction preventing enforcement in the U.S. of a Canadian court order that compelled Google to globally de-list certain search results of a former distributor that had allegedly used its websites to unlawfully sell the defendant Equustek Solutions’s (“Equustek”) intellectual property. (Google LLC v. Equustek Solutions Inc., 2017 WL 5000834 (N.D. Cal. Nov. 2, 2017)).
In granting Google’s request for a preliminary injunction, the court found that Google likely satisfied all three elements of qualifying for immunity under Section 230 of the Communications Decency Act, 47 U.S.C. §230(c)(1) (the “CDA” or “Section 230”) as a service provider that linked to third-party content, and that the Canadian court’s order implicated online free speech concerns. Indeed, the court concluded its opinion with language that surely buoyed many online providers and open internet advocates that had previously expressed concerns about the extraterritorial effort of the Canadian order:
“By forcing intermediaries to remove links to third-party material, the Canadian order undermines the policy goals of Section 230 immunity and threatens free speech on the global internet.”