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Canada to Google: You can't have your borderless cake and eat it too

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Google-watchers young and old will savour the latest twist in the corporation's attempts to avoid laws it doesn't like. It's a landmark judgment in Canada that's unusual in several ways - not least for the argument that Google advanced.

The case – Equustek Solutions Inc. v. Jack, presided over by Justice Lauri-Ann Fenlon – was brought by industrial automation equipment and network hardware company Equustek, based Burnaby, Canada. The kit-maker was trying to squash websites selling the products of US company Datalink Technologies Gateways Inc, which it claims were based on trade secrets stolen by former Equustek employees.

Canadian courts have already prohibited Datalink from carrying on business through any website, but, as the judgment points out: "the defendants continue to sell the GW1000 on their websites in violation of these court orders".

In 2012 ordered Google to remove URLs of websites selling the product, the GW 1000, from its search results on Google.ca, the Canadian face of Google. This proved ineffective, as despite the ad giant's voluntary blocking of 345 named websites, the distributors simply generated new URLs and continued to sell the product.

Google at first argued that Canadian law didn't apply to it. It also argued that the Court had no "subject matter competence", that because no Canadian Court had ever ruled on a search engine it couldn't do so again, or in the judge's words: "The plaintiffs and Google agree that the type of order I am asked to make has never before been made by a Canadian court...[the] notion that a court may only make the orders it has made in the past is anathema to the spirit of the common law."

The court accepted that Google, as a bystander caught up in the dispute, wasn't trying to flout the authority of the 2012 instruction. But it threw out the arguments that the judge couldn't rule on a US company operating through a subsidiary (Google Canada) - and rejected the argument that it couldn't make a determination about "search services" operations based in California.

Along the way, it rejected Google's undue censorship argument that "URLs not specifically reviewed and identified may be used for any number of innocent purposes and a complete removal could result in possibly numerous URLs being blocked without Google having had the opportunity to review them and determine if a departure from its usual indexing process is necessary or warranted in the circumstances."

Justice Fenlon noted that Google already filtered its search results to comply with the law to remove child pornography and hate speech in certain countries. The potential threat of accidental, innocent blocking didn't mean Google could do nothing.

Google is an "innocent bystander, but it is unwittingly facilitating the defendants’ ongoing breaches of this Court’s orders. There is no other practical way for the defendants’ website sales to be stopped. There is no other practical way to remove the defendants’ websites from Google’s search results," the judge pointed out.

The search giant also argued the Court shouldn't rule against it because the consequences were boundary-less: that the Court should not make an order that could affect searches worldwide, because it would put Google in the impossible situation of being ordered to do something that could require it to contravene a law in another jurisdiction. You could say that like Boris Johnson, it is pro cake, and pro eating it.

Finally Justice Fenlon reminded Google that simply because the internet "doesn't have borders", it doesn't follow the law can't be upheld within each set of borders. The irony here should be apparent: Google argued the Canadian court didn't have jurisdiction because states had boundaries.

You can find an expert analysis of the judgment by a Canadian tech lawyer here. ®

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