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Global Google gag upheld over counterfeit allegations

Search giant Google has been globally banned from displaying the websites of a company that has been accused of counterfeiting.

The move follows a Supreme Court of Canada ruling in regards to a lawsuit over intellectual property rights belonging to Canadian technology company Equustek.

The Supreme Court ruled 7-2, upholding a British Columbia lower court ruling that restricted Google from displaying content globally that allegedly infringed Equustek's IP.

Google responded to the ban saying: "We are carefully reviewing the court's findings and evaluating our next steps."

The world's first global de-indexing order relates to a suit between Vancouver tech firm Equustek Solutions and Google.

However, the six-year court battle initially began when Equustek Solutions, which manufactures networking devices that allow industrial equipment to communicate with each other, claimed its distributor Datalink Technologies Gateways was relabelling Equustek products under Datalink's name, as well as allegedly manufacturing counterfeit copies of the products.

Equustek sued Datalink, which denied the accusations. But the distributor absconded and continued to sell the products to a global market from an unknown location.

As yet, Equustek's counterfeiting allegations have not been proven in court but court orders have been served requesting Datalink to cease sale of the products while the allegations are investigated.

With limited success, Equustek sought the help of Google, asking the tech giant to remove Datalink from its search engines.

A court order saw Google remove 345 web pages but not Datalink's websites, and the search engine only blocked searches on Google.ca not Google.com.

A broader injunction against Google displaying Datalink content globally was granted by a British Columbia court, which Google appealed and lost, forcing a decision to be made by the Supreme Court, which rejected Google's arguments that Canadian courts don't have the jurisdiction to impose Canadian law in other countries through global injunctions.

Court documents said that Google acknowledged that it removed content and search results in similar situations such as those related to child pornography and hate speech, and that it would comply with notices of possible copyright infringement and remove such material.

Justice Rosalie Abella of the Supreme Court noted while Google was not specifically causing direct harm to Equustek, the search engine "facilitated" the harm.

"The problem in this case is occurring online and globally. The internet has no borders – its natural habitat is global," Abella said. For the injunction to work it needed to apply to where Google operates, which is globally, she said.

The case could have important implications in other IP, trademark, copyright and piracy infringement. In addition, the two dissenting judges argued that the decision could set a precedent where allegations of counterfeiting would no longer need to be tested in court if an injunction to remove allegedly infringing content was possible from the outset.

But more broadly, the case could also have implications on the global distribution of any type of content. The global ban, for instance, has led free speech advocates to claim the ruling sets a precedent that highlights a conflict between local country rules and the global nature of the internet and which may give power to Google, governments and companies to choose what content the search engine displays.

According to a blog post by Michael Geist, a law professor at the University of Ottawa, the Supreme Court focused just on the commercial aspects of the case and did not address the broader implications of the decision that puts freedom of speech and access to information at risk.

"The ruling invites more global takedowns without requiring those seeking takedowns to identify potential conflicts or assess the implications in other countries," Geist wrote.

But Abella said: "This is not an order to remove speech that, on its face, engages freedom of expression values; it is an order to de-index websites that are in violation of several court orders. We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods."


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