By Richard Stobbe

As noted in our recent summary of the Supreme Court of Canada (SCC) decision in the ongoing fight between Google and Equustek Solutions, Google lost in Canada’s top court. Google promptly filed an application in US Federal Court in California its home jurisdiction, on July 24, 2017,  seeking relief from the reach of the SCC order.

In a decision released November 2, 2017, the US court handed down its decision in Google v. Equustek, Case 5:17-cv-04207-EJD, N.D. Cal. (Nov. 2, 2017). The first few pages of the US decision provide a useful summary of the Google/Equustek story. The US Court entertained Google’s application that the SCC’s order is “unenforceable in the United States because it directly conflicts with the First Amendment, disregards the Communications Decency Act’s immunity for interactive service providers, and violates principles of international comity.”

The US court quickly concluded that Google is eligible in the US for Section 230 immunity under the Communications Decency Act. Essentially, under US law, Google is merely an intermediary or “interactive service provider”, and not a “publisher” of the offending content. As an intermediary, it takes the cover of certain provisions granting immunity from liability. Section 230 immunity is well-tilled soil in US courts, and Google has fought and won a number of cases under Section 230 already, so Google’s immunity was not news to Google.  By compelling the search engine to de-index content that is protected speech in America, the SCC order had the effect of undercutting Section 230 immunity for service providers, thereby undermining the goals of Section 230 which is to preserve free speech online.

This preliminary injunction releases Google – in the United States – from compliance with the Canadian court order. Whether Google is content to rely on this, or whether it will pursue a final decision on the full merits, and whether Google will apply to the Canadian court (as the SCC invited it to do) for a variance of the Canadian order… all remains to be seen.

Calgary – 15:00 MST