For the past few years, we've been covering the worrisome Google v. Equustek Solutions case in Canada. The case started out as a trademark case, in which Equustek claimed that another company was infringing on its trademarks online. That's fine. The problem was that the lower court issued an injunction against Google (a non-party in the case) that said it had to block entire sites worldwide. Blocking sites already raises some concerns, but the worldwide part is the real problem. In 2015, an appeals court upheld that decision, and earlier today the Canadian Supreme Court agreed with both lower courts in a 7-2 decision.
The court is dismissive of any concerns about how an order from one country to block things on the internet globally might be abused -- calling the concerns "theoretical" and unproven. That may not last very long. First, let's look at the decision itself, and then the horrific possible consequences for free speech and innovation.
Google’s argument that a global injunction violates international comity because it is possible that the order could not have been obtained in a foreign jurisdiction, or that to comply with it would result in Google violating the laws of that jurisdiction, is theoretical. If Google has evidence that complying with such an injunction would require it to violate the laws of another jurisdiction, including interfering with freedom of expression, it is always free to apply to the British Columbia courts to vary the interlocutory order accordingly. To date, Google has made no such application. In the absence of an evidentiary foundation, and given Google’s right to seek a rectifying order, it is not equitable to deny E the extraterritorial scope it needs to make the remedy effective, or even to put the onus on it to demonstrate, country by country, where such an order is legally permissible.
This is a nifty trick: because you can't show that this order might offend freedom of expression laws somewhere else in the world, let's just assume it's fair to apply absolutely everywhere. But... that's not the issue. It's not for a Canadian court to determine if its rulings obey the laws in other countries. A Canadian court has jurisdiction over Canada. And that's it. This is not about balancing theoretical harm v. real harm, this is about jurisdiction.
The court tries to get around the jurisdictional question by saying because Google is available in Canada, somehow that makes it okay to censor globally, and further, notes that the lack of borders on the internet require such a result (ignoring how this will almost certainly create massive problems down the road):
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 that the interlocutory injunction attained its objective was to have it apply where Google operates — globally. As Fenlon J. found, the majority of Datalink’s sales take place outside Canada. If the injunction were restricted to Canada alone or to google.ca, as Google suggests it should have been, the remedy would be deprived of its intended ability to prevent irreparable harm. Purchasers outside Canada could easily continue purchasing from Datalink’s websites, and Canadian purchasers could easily find Datalink’s websites even if those websites were deindexed on google.ca. Google would still be facilitating Datalink’s breach of the court’s order which had prohibited it from carrying on business on the Internet. There is no equity in ordering an interlocutory injunction which has no realistic prospect of preventing irreparable harm.
This sounds nice, but makes no sense. First, again, a Canadian court only has jurisdiction over Canada. If the irreperable harm is happening elsewhere, then that's not the Canadian court's jurisdction and it has no say in the matter. The fact that purchasers outside Canada can find Datalink's website isn't a matter for Canadian courts. This may sound unfair -- as the court seemed to think -- but take two seconds to flip the script and think about how this would work with a ruling in China about stories concerning Tiananmen Square, or in Saudi Arabia about LGBTQ rights -- saying that Google had to de-index such sites in Canada, because they violated local law.
The second scary part about the ruling is that it's not just saying that Google needs to de-index sites shown to involve infringement, but that it needs to de-index an entire site because other pages on that site might, at some future point, infringe. Really. The two dissenting judges pointed out how problematic this aspect is in the ruling, and how it actually gives Equustek even more than it was seeking.
The December 2012 Order gives Equustek more than the injunctive relief it sought in its originating claim. Rather than simply ordering the modification of Datalink websites, the December 2012 Order requires the ceasing of website business altogether.
And that creates an additional problem. Since Equustek is getting more than it wanted, and because the defendant in the original case has ignored the court process, it's likely that this "temporary" injunction will effectively become a permanent one:
In our view, little incentive remains for Equustek to return to court to seek a lesser injunctive remedy. This is evidenced by Equustek’s choice to not seek default judgment during the roughly five years which have passed since it was given leave to do so.
Thus, the dissent notes, this is, in effect, a permanent injunction. And, it doesn't come close to the standards necessary for such a permanent injunction -- specifically in dragging a third party (i.e., Google) into the remedy:
As we will outline below, the Google Order enjoins a nonparty, yet Google has not aided or abetted Datalink’s wrongdoing; it holds no assets of Equustek’s, and has no information relevant to the underlying proceedings. The Google Order is mandatory and requires court supervision. It has not been shown to be effective, and Equustek has alternative remedies.
And, it fears that Google will be forced to continue to monitor and de-index any new website set up by Datalink:
The Google Order requires ongoing modification and supervision because Datalink is launching new websites to replace delisted ones. In fact, the Google Order has been amended at least seven times to capture Datalink’s new sites (orders dated November 27, 2014; April 22, 2015; June 4, 2015; July 3, 2015; September 15, 2015; January 12, 2016 and March 30, 2016). In our view, courts should avoid granting injunctions that require such cumbersome courtsupervised updating.
Finally, the dissent points out that it appears Datalink has assets in France, and Equustek could easily go after them there, and that would be a remedy that leaves Google out of the process.
Unfortunately, the dissent does not really delve into the problematic nature of a Canadian court claiming it can force a website to de-list sites globally. I already provided the Chinese/Saudi Arabian examples above, but Canadian law professor Michael Geist goes much deeper:
Google will obviously abide the ruling, but as I noted last year, what happens if a Chinese court orders it to remove Taiwanese sites from the index? Or if an Iranian court orders it to remove gay and lesbian sites from the index? Since local content laws differ from country to country, there is a great likelihood of conflicts. That leaves two possible problematic outcomes: local courts deciding what others can access online or companies such as Google selectively deciding which rules they wish to follow. The Supreme Court of Canada did not address the broader implications of the decision, content to limit its reasoning to the need to address the harm being sustained by a Canadian company, the limited harm or burden to Google, and the ease with which potential conflicts could be addressed by adjusting the global takedown order. In doing so, it invites more global takedowns without requiring those seeking takedowns to identify potential conflicts or assess the implications in other countries.
Geist also notes that this is part of the "drip drip drip" nature of mutliple rulings chipping away at free expression online:
This last paragraph noting that Google already removes links to certain content (hate speech, child pornography, and copyright takedowns) highlights the cumulative effect of court decisions and regulations that individually may seem reasonable but which quickly move toward takedowns of all kinds. In fact, the majority cites the international support for Internet injunctions with global effect as a justification for its own order. The net result is the expectation of all countries and courts that they may issue global takedown orders regardless of the impact on Internet users outside the jurisdiction or on Internet intermediaries.
Furthermore, Geist highlights where the court went wrong in saying that because it's "easy" for Google to de-index a site worldwide, there's no burden. But the technical burden is not the issue. The legal burden is:
Of course, the inconvenience does not come from the technical side of removing search results, which is indeed trivial. The real inconvenience comes from conflict of laws and the potential for global takedown orders coming from across the planet, thereby opening the door to other countries choosing what Canadians might be able to find in search results. Those issues – along with the need to identify the laws in other countries in order to avoid conflicts – do involve significant inconvenience and expense.
Indeed, a ruling like this likely will give Google more power over others, because Google has a large legal team that can handle this. Most other sites do not. Smaller sites cannot scour the globe to find out where such global takedown orders are legal and where they are not.
Another Canadian lawyer, Howard Knopf, is even more forward in pointing out how this will be abused by Hollywood:
I can just see the RIAA and MPAA salivating that the thought of getting global injunctions against Google at an interlocutory hearing from a trial judge in British Columbia. Will the mere fact that copyright subsists in BC - as it does virtually everywhere - be sufficient to get the injunction? One can imagine that few if any defendants would appear in such proceedings.
And, worse, he points out that even if Canadian trial judges see through that ploy, the RIAA & MPAA can just go jurisdiction shopping for other locations where courts will cite this case as a reason they can issue preliminary global injunctions. Canada just handed anyone who wants it a tool for global censorship. Anyone from authoritarian regimes to Hollywood may now begin to use it.
I recognize that some Google haters are cheering on this ruling because they will cheer on anything that makes Google look bad -- and the RIAA/MPAA types are celebrating this new power over Google. But this is extremely short sighted. Enabling countries to reach across borders to censor the internet does not end well. You are giving veto power over speech to the most repressive regimes, just because you dislike a company. If that's your view, you should perhaps check your priorities more carefully. And this goes doubly for the RIAA and MPAA. Those two organizations both used to fight for free speech. They both used to fight for the ability of musicians and filmmakers to express themselves. This tool that they helped create (they were involved in this case, pushing the view that the court eventually sided with), will be turned around and used to censor music and movies worldwide -- and the legacy recording and film industries will have no one to blame but themselves.