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California Court Holds That Orders Demanding Global De-indexing Threaten Free Speech

Earlier this year, the Supreme Court of Canada upheld a lower court order ordering Google to de-index a website from its global search results. In its decision, the Canadian high court rejected Google’s arguments that such an order would violate international rules of comity and hinder freedom of expression. In response, Google took the fight back to the U.S. District Court for the Northern District of California, where it sought relief from the global reach of the Canadian injunction order. On November 2, 2017, the Northern District of California sided with Google and granted a motion for preliminary injunction to prevent the enforcement of the Canadian order in the United States. The Northern District’s ruling marks an early blow to the rising trend of global injunctions and demonstrates the willingness of American courts to act as bulwarks against foreign orders threatening speech-related interests, including the statutory immunities under Section 230 of the Communications Decency Act.

Background

The Canadian order comes from a dispute between two Canadian computer hardware companies. In 2011, Equustek Solutions, Inc. sued Datalink, a rival computer hardware distributer and seller, for stealing trade secrets and passing off its products as Equustek’s goods to consumers. After the trial court ruled against Datalink, the company refused to comply and moved its business operations out of Canada to parts unknown. Equustek then sought to enforce against non-party Google the injunction it had obtained against Equustek. Though Google blocked over 300 Datalink-related websites from its Canada-specific search results, Equustek pressed for an additional court order to force Google to remove Datalink websites from Google’s global search results. The trial court granted the order and required Google to de-index the results worldwide. Google complied but appealed. The Court of Appeal of British Columbia and the Supreme Court of Canada affirmed. The Supreme Court saw the order as the only practicable way to prevent further harm to Equustek. For more background, read Fenwick’s analysis in “What Canadian Supreme Court's Landmark Decision Means for Tech Companies Big and Small.

Following the Supreme Court of Canada’s decision, Google brought a declaratory judgment action, Google v. Equustek Solutions, in the Northern District of California. Google’s lawsuit sought relief against the global reach of the Canadian order and moved for a preliminary injunction. In its motion and complaint, Google argued that the Canadian order conflicted with the First Amendment, disregarded the Communications Decency Act’s immunity for interactive computer service providers, and violated the principles of international comity.

Equustek failed to appear in the lawsuit or oppose Google’s motion for a preliminary injunction.

Northern District of California’s Decision

The court found that Google was entitled to preliminary relief solely based on its likely entitlement to immunity based on Section 230 of the Communications Decency Act. Specifically, the court held that “the Canadian order undermines the policy goals of Section 230 and threatens free speech on the global internet.”

In order to qualify for immunity under Section 230 of the Communications Decency Act, a party must show that 1) it is a provider or user of an interactive computer service, 2) the information at issue was provided by another information contention provider, and 3) the dispute seeks to hold the party liable as the publisher or speaker of the information at issue. The court found that Google is without a doubt a provider of interactive computer services, and that Datalink—not Google—was the provider of the information at issue. Since the Canadian order held Google liable as the “publisher or speaker” of the information on Datalink’s websites, the court found that the Communications Decency Act likely barred enforcement of the order against Google and granted the motion for preliminary injunctive relief.

Importance

Because Equustek did not oppose Google’s motion for a preliminary injunction, or for that matter even appear in the lawsuit, it is important not to read too much into the Northern District’s Equustek ruling. Nevertheless, its decision demonstrates that American courts recognize the important speech interests that injunctions against non-party service providers implicate and suggests a willingness to block U.S. enforcement of orders by foreign courts that conflict with United States policy. It is still far too early to tell where the debate over global injunctions will lead. But the Northern District’s ruling may require litigants in other countries to recognize that the “global” injunctions they seek may not be global in practice.​​​​