In a current dispute between Google and a Canadian company over de-indexing a competitor, Google is doing everything in its power to avoid the court order. Not necessarily because it believes in the innocence of Datalink, but because to de-index would be removing an important immunity under current U.S. laws. One may be wondering, what was the immunity that prompted Google’s move? Why could it just pick up and go somewhere else? Should other businesses be concerned for this possible loss of immunity, and why might a business support Google here?
Equustek Solutions, Inc., a Canadian company, engaged in litigation with Datalink due to illicit activities on Datalink’s part (e.g., misappropriation of trade secrets) and using those trade secrets to confuse consumers in the market. Due to the similarities resulting from the alleged misappropriation, Datalink led consumers to believe that they were purchasing Equustek’s products. Equustek then sued in Canadian courts, resulting in various court orders against Datalink. However, Datalink managed to evade enforcement by fleeing the country and setting up shop somewhere else.
With Datalink unavailable to provide the relief Equustek requested, Equustek went elsewhere. Equustek wanted Datalink’s websites de-indexed from Google’s search results. By doing so, individuals would no longer be able to see Datalink’s websites as easily. This would likely cut down on Datalink’s business, and allow Equustek to continue without interference. Equustek first requested, and then demanded Google’s cooperation through a court order, and ultimately succeeded. Or rather, it succeeded in the Canadian courts.
Following Equustek’s success, and Google’s failure in appeal, Google decided to sue Equustek in the United States, attempting to revoke the injunction by declaring that the injunction ignored an immunity it was granted under U.S. laws.
Google’s Immunity and ramifications
The immunity Google was trying to protect was granted under the Communications Decency Act, immunizing third parties against liability for actions taken by another person using its services. The three factors the court used to issue its ruling were: (1) is it a provider of an interactive computer service; (2) was the offending information provided by a third party; and (3) is the internet service provider being treated as a publisher for the purposes of the lawsuit?
The court ultimately determined the answer to all three questions was in the affirmative. Furthermore, because the immunity was ignored, it helped push the court’s ultimate decision to grant preliminary injunctive relief. Among the basis for this ruling, the court recognized that Canada can ignore the immunity the United States Congress chose to grant internet service providers by enacting the Communications Decency Act.
For other online entities, this would result in a risky proposition. While the United States may not grant an injunction, however, if the Canadian court continues to enforce its order, online service providers may have to worry about foreign states effectively overriding their immunities, and forcing them to take actions.
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