In a surprising move the BC Supreme Court in Equustek Solutions Inc. v. Jack, 2014 BCSC 1063, released June 13, 2014, has ordered Google, as a third party, to remove from its search engine all websites operated by the defendants in the action. The defendants operated a number of websites (some of which were created following a previous injunction against the defendants) which the plaintiff alleged offered products that infringed the plaintiffs' trade secrets, and wrongly traded upon the plaintiffs' goodwill.
The order, made by Justice Fenlon, was supported by an extensive consideration of the BC Court's jurisdiction over Google as an entity, and jurisdiction to grant an injunction with worldwide effect. The reasons demonstrate awareness that the order is a first instance of such an order in Canada, and engage in a detailed review of the relevant law and the potential practical consequences.
Ultimately, the court, relying on its inherent jurisdiction, concluded that it was necessary and equitable in the circumstances to grant an injunction against Google, who was "inadvertently facilitating" the defendants, in order to protect against the defendants' "flagrant and ongoing breaches" of court orders and process.
The severity of the defendants' behaviour in this case will likely limit the instances in which similar injunctions may be granted.
Nonetheless, the decision creates a potential route for intellectual property rights holders to address infringement by entities who seek to avoid the court's authority, and hide behind an exclusively digital presence.
By all appearances, this decision will be appealed. We will provide further updates as the case progresses.
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