Equustek, a Canadian company, brought suit in 2011 in Canada a group of individual and corporate defendants associated with Datalink, a rival computer hardware firm, in 2011, alleging that Datalink had stolen trade secrets and misled Equustek’s customers into believing they were purchasing Equustek products. Over the course of the litigation, Equustek obtained a number of orders against Datalink, which refused to comply. Equustek then asked Google to remove Datalink’s websites from search results and, following the Canadian district court’s grant of injunctive relief against Datalink, Google blocked approximately 300 Datalink websites from appearing in its Canada-targeted search results. Equustek then sought, and obtained, a court order requiring Google to remove Datalink links from its search results worldwide. Google opposed the order and appealed it, unsuccessfully, to the Supreme Court of Canada, which issued its final decision on June 28, 2017.
Google shortly thereafter filed an action seeking a declaratory judgment that the Canadian order was not enforceable in the United States, because it violated Google’s rights under the First Amendment; directly contradicted Section 230 of the Communications Decency Act, which provides immunity for interactive service providers vis-a-vis third-party content; and ignored principles of international comity.
On a motion for a preliminary injunction to enjoin the enforcement of the Canadian order in the United States (to which Equustek did not file an opposition), the district court found that Google demonstrated a likelihood of success on the merits of its arguments that the order undermined the protection afforded by the CDA to Google as an “interactive service provider.” In order to qualify for Section 230 immunity, Google was required to show that (1) it is a provider or user of an interactive computer service, (2) the information in question was “provided by another information content provider” and (3) the Canadian order would hold it liable as the “publisher or speaker” of that information. The court held that Google is unquestionably an “interactive computer service,” and that Datalink “provides” the content at issue, as Google’s program just provides access to and reproduces text located on Datalink’s websites.
As for the third requirement, Ninth Circuit precedent holds that regardless of the nature of the underlying cause of action, “a claim treats an intermediary as a publisher when it requires that intermediary to remove third-party content.” As the Canadian order required Google to remove content from its search engines, the court held that Google is a publisher within the meaning of the act for the purposes of the declaratory judgment action, and therefore likely to be protected from liability by the immunity provided by Section 230.
The court then turned to the balance of the factors for consideration in granting a preliminary injunction, and held that Google had met its burden on each. First, the court found that Google is harmed because the Canadian order directly restricts activity that Section 230 protects. Second, the balance of equities favored Google, as the Canadian order, if not enjoined, “would deprive Google of the benefits of U.S. federal law.”
Last, the court held that enjoining enforcement of the Canadian order serves the public interest, observing that Congress “recognized that free speech on the internet would be severely restricted if websites were to face tort liability for hosting user-generated content,” and enacted Section 230 as the mechanism for dealing with that concern. The court rejected the Canadian order as impermissibly “eliminat[ing] Section 230 immunity” and concluded that, “[b]y forcing intermediaries to remove links to third-party material, the Canadian order undermines the policy goals of Section 230 and threatens free speech on the global internet.”
Summary prepared by Jonathan Zavin and Erin Smith Dennis