Google‘s “Stoush” with New Zealand: Who Will Prevail?

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Why is it that every time I write about Google, they have done something else to antagonize national governments? Once again they are in hot water in New Zealand, owing to Google’s proclivity to thumb its nose at small nations (and sometimes quite big nations) because, well, they’re Google and they’re big, and they’re everywhere. This time, as reported in the New Zealand media, Google violated a publication ban imposed in a high-profile murder case by circulating a British news story that identified the accused, showing his picture, and highlighting it all in a “what’s trending New Zealand” email to subscribers (a number of whom were in New Zealand). The NZ publication ban was imposed so as not to impair the accused’s right to a fair trial because of media reports that might influence a jury

When the breach was first noted back in January of this year, Google gave assurances to New Zealand’s Prime Minister that it would examine the issue. Nothing happened. The New Zealand Ministry of Justice followed up this month and was given an unsatisfactory response. According to media reports, Google indicated that it had no intention of changing its practices. Andrew Little, New Zealand’s Justice Minister is reported as saying,

“The response received is unsatisfactory…Google’s contempt for New Zealand law…is unacceptable and I will now be considering my options”.

Google responded that it respects New Zealand law, and when it receives court orders it responds “appropriately”. Except that it clearly doesn’t respect NZ law, and what seems to constitute an appropriate response for Google becomes an unsatisfactory response for New Zealand’s top law enforcement official. This is not the first time that Google has run afoul of New Zealand court orders requiring it to block the dissemination of information in that country. Back in May of 2018 Google refused to comply with a New Zealand court order requiring it to suppress the details of another high-profile murder case. Google refused to block search results for users trying to access the name of the accused murderer and details of the murder stating, as one reason among several, that it was not bound by New Zealand law but rather by the laws of California, where it is headquartered. As I wrote at the time, in a blog (here), “Kiwis should look to Canada for a precedent”.

I was referring to the Google-Equustek case where Google took the position that it was not required to comply with a Canadian injunction requiring it to block global search results related to a Canadian company that had been found by the Supreme Court of British Columbia to be infringing the IP rights and trade secrets of another Canadian company, despite a Canadian court order requiring it to desist from doing so. The offending company had set up a virtual presence on the web and continued to do business in defiance of the Canadian courts. As part of the remedy, the plaintiffs requested that the offending company’s websites be blocked and Google, (essentially an uninvolved third party) was ordered by the Court to give effect to the order by de-indexing the websites in question from its search services globally. Google refused, although it conceded that it had the technical ability to do so, arguing that the Canadian order opened the door to a number of hypothetical situations where national governments could require Google to block content.

Google appealed to the British Columbia Court of Appeal, unsuccessfully, and again to the Supreme Court of Canada, where it lost again, in part because the Court did not buy Google’s argument that blocking a website hosting IP (intellectual property) infringing material equated to blocking free speech. While Google complied with the Canadian order, grudgingly, it sought an order in California blocking the enforceability of the Canadian decision in the US, a request that was duly granted by the US court. However, that did not invalidate the Canadian order in Canada and when Google returned to the British Columbia court armed with the US decision, asking that the Canadian order be varied as a result, the request was denied. The BC Court pointed out that there is no law in the US requiring Google to index the websites of any given company, and therefore the Canadian order did not violate US law. The case is still under litigation and Google is still complying with the Canadian order.

This holds lessons for New Zealand. After the appalling killings at the mosque in Christchurch, New Zealand, and the broadcast of the killer’s video for prolonged periods on a number of social media platforms including YouTube (owned by Google), patience is wearing thin with the excuses of the large multinational internet platforms. Google has not chosen a propitious time to get into a “stoush” (look it up) with the New Zealand government.

In Australia, the government has been even more aggressive as a result of what happened in Christchurch, with the passage of legislation holding the executives of social media platforms criminally responsible if violent material is not removed expeditiously after due notification by the authorities. Google is facing its own challenges in Australia and has recently agreed to engage in voluntary de-indexing of websites found by the Australian courts to be infringing copyright, facilitating infringement or whose primary purpose or effect is copyright infringement. This suddenly cooperative attitude is no doubt due in part to the bad odour surrounding social media platforms (like YouTube) as well as to the passage of amendments to Australia’s copyright legislation (over the strong objections of Google and its Internet Association allies) requiring search engines to de-index offshore websites found by the courts to be engaging in widespread copyright infringement. This new legislation has not yet been tested in court but Google’s calculus seems to be that it is better to get on board with the program and be seen to be cooperative rather than continue to fight a losing battle.

One has some sympathy with Google’s dilemma of finding itself increasingly subject to the exercise of national law in the many jurisdictions in which it operates. France’s new digital tax is another example. However, that is the price to be paid for running a global corporation, and is one that a corporation such as Google is well equipped to deal with. When it comes to bulking up with lawyers and lobbyists, Google takes a back seat to no-one. Declining to cooperate with national courts, evading any responsibility for promotion and dissemination of copyright infringing content, hiding behind the pretense that the only law it is subject to is US law, not to mention using that US law to avoid taking any responsibility for the content on its platform, are all tactics that Google has perfected. But I have a feeling that a day of reckoning is approaching.

Maybe one element of that reckoning will take place in New Zealand. What will happen there in the aftermath of the most recent stoush is a good question, and one wonders what options Justice Minister Little is considering. I hope he will be robust in his assertion of the rule of law, ensuring that it applies to all, offline and online, large or small, national or multinational. Canada and Australia are two examples of governments and legal systems that have managed with some success to get their arms around the problem of Google’s (non) compliance with national law—although the story is far from over in both countries. There is no reason why New Zealand cannot do the same.

© Hugh Stephens, 2019. All Rights Reserved.

Canadian Copyright Review: The Case of Indigenous Culture

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As it prepares to take on the task of bringing forth amendments to Canada’s copyright legislation, the Canadian government will be digesting and assessing two recent Parliamentary reports dealing with copyright issues, Shifting Paradigms, the report of the Standing Committee on Canadian Heritage and the INDU Committee Report, the report of the Standing Committee on Industry, Science and Technology. The two reports came out within a couple of weeks of each other, and both put forward a number of recommendations, some of which were mutually inconsistent. The copyright community generally applauded Shifting Paradigms and while there were elements it supported in the INDU Committee Report, it is fair to say that it was less than enthusiastic about some of the latter’s recommendations, as I discussed in an earlier blog. However one area where both Committees shared the same wavelength was with respect to indigenous culture and the impact that copyright can have on native artists and traditional indigenous expression. Continue reading “Canadian Copyright Review: The Case of Indigenous Culture”

“Mural, Mural on the Wall: Who’s the Owner of Them All?”

(c) Michelle Loughery, 2007. By permission of the artist.

For a small town in British Columbia, it’s a tale of high drama and threatened lawsuits. Merritt, BC, population about 7000, is a small ranching, sawmill and tourist town situated in the Nicola Valley in the interior of the province, a 3 hour drive from Vancouver. I passed a university summer of my misspent youth there, working in the big open-pit copper mine (Craigmont) that used to be one of the mainstays of the economy. The mine is long closed and now the good citizens of Merritt use various techniques to attract visitors, such as holding an annual country music festival, (which in some years increases the population of the town some twentyfold), hosting the Canadian Country Music Hall of Fame and displaying a number of creative murals that grace various buildings around town, all tied to the country music theme. It’s a rollicking little town that has become caught up in the crossfire of a copyright controversy. Continue reading ““Mural, Mural on the Wall: Who’s the Owner of Them All?””

Copyright Review in Canada: INDU Committee Issues Clumsy and Tone-Deaf “We’re in Charge” Press Release

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In an extraordinary display of gamesmanship, (one might say one-upmanship) the Standing Committee on Industry, Science and Technology (INDU Committee) felt compelled to issue a clumsy and tone-deaf press release, titled “On Shifting Paradigms” on June 18 reminding the world that it has “sole responsibility” for the statutory review of the Copyright Act. It is most unusual for one Parliamentary Committee to comment publicly on the work of another, in this case the report of the Standing Committee on Canadian Heritage, Shifting Paradigms, issued last month. In effect, the press release confirms that in delivering its report, the INDU Committee did not take into account the Heritage Committee’s report even though Shifting Paradigms addressed a number of issues relevant to the current review of the Act, and even though it was commissioned by INDU when it invited the Heritage Committee to conduct a companion study on remuneration models for artists and creative industries, and to provide INDU with a summary of its findings. The Heritage Committee did just that although in the form of a report to Parliament, as is its right, rather than through a direct submission to the INDU Committee. Continue reading “Copyright Review in Canada: INDU Committee Issues Clumsy and Tone-Deaf “We’re in Charge” Press Release”

The USMCA/CUSMA and Intellectual Property: Canada Wins

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The government of Justin Trudeau is now moving quickly with legislation to ratify the new trilateral North American trade agreement in the wake of the announcement last month that the Trump Administration would lift the steel and aluminum tariffs that were imposed on Canada (and Mexico) in June 2018 on ostensible “national security” grounds. Yes, aluminum and steel from Canada (and other US allies) apparently threaten US national security according to the justification for the tariffs put forward by the US Administration and imposed during the NAFTA 2.0 negotiations. Continue reading “The USMCA/CUSMA and Intellectual Property: Canada Wins”

Copyright Review in Canada: The Second Shoe Drops

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In the ongoing process of Canada’s copyright review, the “second shoe” has dropped and, as expected, the thud as it landed on the floor of the House of Commons was different from that of its companion report, Shifting Paradigms, the report of the Standing Committee on Canadian Heritage tabled on May 15 of this year. This most recent report delivered by the INDU Committee (officially known as the Standing Committee on Industry, Science and Technology) on June 3 contains thirty-six recommendations. As I noted in an earlier blog posting on Shifting Paradigms, it is not surprising that a number of the INDU Committee’s recommendations are not fully consistent with those of the Heritage Committee; indeed some of them are directly inconsistent. In some cases, the two committees come to similar conclusions but propose different remedies. In a couple of cases, the recommendations are identical. Now the government will have to take both reports into consideration as it decides how to move forward with any changes to legislation. It has 120 days to respond in writing to the report. All of this will be subsumed by a general election on October 21, which will decide whether the current Liberal government will be dealing with the recommendations or someone else. Continue reading “Copyright Review in Canada: The Second Shoe Drops”

Google in Australia: Sudden Conversion or Tactical Manoeuvre?

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In news coming out of Australia, it has been reported that Google has voluntarily agreed to de-index several hundred websites that distribute pirated audio-visual content. This will make it more difficult although not impossible for Australian consumers to access these sites. Village Roadshow Chairman Graham Burke, Australia’s most prominent anti-piracy crusader, has been reported as saying, with regard to Google, “We’ve gone from being enemies to being allies”. That’s quite a transformation. Continue reading “Google in Australia: Sudden Conversion or Tactical Manoeuvre?”