Injunction With Extraterritorial Effect Against A Non-Party: The Google Inc. v. Equustek Solutions Inc. Decision

1. The context

   According to the summary of facts set out in the decision of the Supreme Court of Canada1, Equustek Solutions Inc. ("Equustek"), a manufacturer of networking devices in British Columbia, entered into a distribution agreement with Datalink Technologies Gateway Inc. ("DataLink") for the online distribution of its products.

   In 2011, Equustek accused DataLink of counterfeiting its products and passing them off as its own. Equustek accordingly obtained an injunction ordering DataLink to return all documentation in its possession belonging to Equustek to it and to post a statement on its website completely dissociating itself from Equustek.

   Not only did DataLink not obey the court order, it left the jurisdiction, relocating in an unknown location outside Canada, and continued to sell counterfeited products of Equustek throughout the world via its website.

   While Equustek continued its legal efforts against DataLink by obtaining other injunctions, including a Mareva injunction freezing DataLink's inventory and making an application to have DataLink found in contempt of court, none of these remedies were effective at putting an end to the harm it was suffering. Under the circumstances, Equustek felt it had no other choice but to apply to the Supreme Court of British Columbia for an injunction compelling Google Inc. ("Google") to de-index DataLink's websites from its search engine, not only for google.ca, but for all Google sites throughout the world.

   The B.C. Supreme Court had to decide whether Google, a non-party to the proceedings between Equustek and DataLink, could be ordered in an interlocutory injunction to de-index DataLink's websites from its search engine, and whether the order could be worldwide in scope.

   Equustek argued before the Court that it was being irreparably harmed by the fact that Google's search engine was referring web users to DataLink's websites, which were being used to sell its counterfeited products. Equustek therefore maintained that an interlocutory injunction against Google was necessary to put an end to DataLink's harmful activities.

   While Google did not dispute that Equustek was suffering irreparable harm that it was inadvertently facilitating through its search engine, it submitted three arguments in its defence. First of all it maintained that as a non-party it should be immune from an injunction. Second, it argued that an injunction was not necessary to prevent the harm and would not be effective...