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Music Canada applauds Supreme Court of Canada decision confirming that Internet intermediaries can be ordered to deindex illegal sites worldwide

June 28, 2017, Toronto:  Music Canada welcomes today’s landmark Supreme Court of Canada decision in Equustek Solutions v. Google upholding a ruling that Google can no longer provide search results anywhere in the world that point to a website that unlawfully sells the intellectual property of another company. Music Canada joined several other creative industry associations as interveners supporting Equustek in the case.

The case establishes principles that will guide the responsibilities of Internet intermediaries to reduce or eliminate harms amplified by their activities.  In the case, Google admitted that it employs a team of more than 40 employees to remove search results to material that offend its company policies, but resisted a court order compelling it to do the same with respect to sites trafficking in goods created from stolen trade secrets.

The Supreme Court ordered Google to stop directing people to the illegal sites.  It rejected Google’s approach of only de-listing individual pages within sites, which a lower court described as promoting a “Whack-A-Mole” approach to online infringement. It also rejected Google’s claim that, as a non-party, it was “immune” to court orders. It concluded that Google was “the determinative player in allowing the harm to occur” and suggested it had a “duty to assist the person wronged”.

Importantly, today’s decision also ensured that the order applies worldwide and across all of Google’s search engines, a crucial development given that the Internet has largely dissolved boundaries between countries and allowed virtual wrongdoers to move from jurisdiction to jurisdiction in search of the weakest enforcement setting.

In particular, the Supreme Court emphasized:

“The problem in this case is occurring online and globally. The Internet has no borders – its natural habitat is global. The only way to ensure the interlocutory injunction [order] attained its objective was to have it apply where Google operates – globally.”

The only way to protect the plaintiff was to prevent the search results from being displayed where they do the most harm: on Google’s global search results.

Last, the Supreme Court concluded that freedom of expression concerns raised by Google and its supportive interveners were at best theoretical. The speech contained on the sites did not engage any freedom of expression values, but rather violated multiple court orders. The Supreme Court found that “most countries will likely recognize… the selling of pirated products as a legal wrong” and that freedom of expression does not require Google to engage in “the facilitation of the unlawful sale of goods.”

Music Canada, together with the International Federation of the Phonographic Industry (IFPI), has been actively involved in this case since it was first appealed to the British Columbia Court of Appeal. Both the Supreme Court and the British Columbia Court of Appeal referred to their assistance in rendering their decisions.

“Today’s decision confirms that online service providers cannot turn a blind eye to illegal activity that they facilitate; on the contrary, they have an affirmative duty to take steps to prevent the Internet from becoming a black market,” said Graham Henderson, President and CEO of Music Canada. “This is welcome news for creators of all stripes who rely on the Internet as their primary market and for whom illegal online activity can instantly wipe out careers and destroy investment in new releases. Today’s decision provides a vital remedy to address illegal online activities and enforce the rights of creators.”

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For more information:

Corey Poole, Music Canada
cpoole@musiccanada.com
+1 (647) 808-7359

About Music Canada

Music Canada is a non-profit trade organization that represents the major record companies in Canada:  Sony Music Entertainment Canada, Universal Music Canada and Warner Music Canada.  Music Canada also works with some of the leading independent record labels and distributors, recording studios, live music venues, concert promoters, managers and artists in the promotion and development of the music cluster.

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