This sounds like a simple and straightforward question to which most people at first blush would instinctively say yes. However that question is the subject of an important case currently being heard by the Supreme Court of Canada. In Google Inc v Equustek Solutions, the Court is hearing an appeal by Google of a ruling by the Supreme Court in British Columbia (B.C.), upheld on appeal in the B.C. Court of Appeal, that issued an interim injunction requiring Google to de-index or delist (i.e. not return search results for) the website of a firm (Datalink Gateways) that was marketing goods online based on the theft of trade secrets from Equustek, a Vancouver, B.C., based hi-tech firm that makes sophisticated industrial equipment. Google wants to quash a decision by the lower courts on several grounds, primarily that the basis of the injunction is extra-territorial in nature and that if Google were to be subject to Canadian law in this case, this could open a Pandora’s box of rulings from other jurisdictions that would require global delisting of websites thus interfering with freedom of expression online, and in effect “break the Internet”. Google’s position is specious and contradictory, and I will explain why I think so below.
The case has aroused considerable interest. A number of parties have joined as intervenors, among them Human Rights Watch, EFF, the Canadian Civil Liberties Association, a number of news organizations such as the Reporters Committee for Freedom of the Press, and others, in support of Google’s position. Other organizations, among them the international music industry (IFPI), Canadian Publishers Council and the International Federation of Film Producers Association (FIAPF), have intervened to support the British Columbia court decisions. Interestingly, the Canadian federal government and a provincial government (Ontario), known in Canada as “the Crowns” are intervening on opposite sides of this case with the federal crown intervening on behalf of Google on the basis that the rulings have extra-territorial effect while the provincial crown is arguing that a provincial court must have the ability to grant relief to its own citizens in its jurisdiction.
The facts of the original case between Equustek and Datalink are not in dispute. Datalink is a spectacularly “bad actor” that appropriated trade secrets, tried to pass off its copycat products as those of Equustek to the point of substituting Equustek labelling on its own products and misdirecting customers through false advertising on its website. It continued to do so despite restraining court orders. From 2012 on the B.C. court imposed numerous orders on Datalink to prevent this online behaviour but the company disappeared “online” and continued its activities, marketing the infringing products to customers both inside and outside Canada from unknown locations. As part of the litigation, Equustek requested that Google de-list Datalink’s websites. Google initially agreed but restricted the de-listing to Google.ca. This solution was ineffective as Datalink continued to operate in defiance of the Court order. Finally in June 2014 Equustek petitioned the Court and won an interim injunction requiring Google to de-index any Datalink websites globally. An excellent summary of the case can be found here. Google appealed.
The B.C. Court of Appeal heard the case in June of 2015. The issue was primarily whether a B.C. court had jurisdiction. The Appeal Court ruled that it did on the basis that Google does business in B.C. such as data gathering, distributing targeted advertising to consumers in B.C. and selling advertising space to B.C. businesses. As a resident of B.C., I can personally testify to Google’s presence. Almost every time I “google” a range of products or services, no matter where in the world they are located, I get a pop-up ad from an equipment rental business just down the road from where I live. Regrettably once, through Google, I went to the website of this company to see if they rented a certain type of equipment and now their ads, served through Google, stick to my world-wide searches like a limpet mine. After claiming that the B.C. Court had no jurisdiction, Google then argued that since it was based in California, the suit should be heard there. This also the Court rejected, indicating that it was providing relief locally to a local business, and that local businesses should not have to track down Google in foreign jurisdictions. For a fuller discussion see David Newhoff’s blog on the appeal decision.
This brings us to the Supreme Court of Canada hearing on December 6, 2016. Google presented similar arguments to those presented in the earlier appeal case, including claiming extraterritorial reach and highlighting the risk that, if upheld, this decision will open the door to court rulings in other countries that could infringe freedom of expression, including the First Amendment of the U.S. Constitution. Examples that have been cited are hypothetical rulings in Russia ordering delisting of websites that promote gay or lesbian lifestyles, or in Turkey possibly regarding events like the Armenian genocide, or in Thailand with respect to websites considered to transgress that country’s strict lese-majeste laws. These are all hypothetical and sensational examples proffered to create uncertainty, and while they make for interesting headlines and get people emotionally worked up, they are well beyond the scope of this particular case, a case which is solely concerned with preventing Google from directing consumers to websites of a particular “bad actor” whose conduct is clearly illegal in every conceivable jurisdiction—a point uncontested by Google.
There is clearly no rational basis for arguing that the limited Equustek injunction opens the door to an attack on online free speech. Just as not every word uttered in the real world is protected by the doctrine of free speech, or by the First Amendment, words reproduced on the internet are no different. It strains credulity to claim that dealing with Datalink’s blatantly illegal online conduct in this one case puts global internet freedom in jeopardy.
In the B.C. appeal, in rejecting the argument that compliance with the injunction would undermine Google globally, the Court opined that in the event that Google became subject to an order in another country to de-index a particular website for some other reason, it would simply deal with that case on its own merits. As a global operator, Google may face challenges from particular national jurisdictions on occasion; that is one of the consequences of operating a world-wide business. It does not follow, however, that because it has a global presence Google is not required to comply with specific national court rulings on the mistaken premise that to do so might require it to comply with other rulings for other reasons in other places.
In challenging whether it is subject to Canadian law in a case that involves its search engine and two companies doing business in Canada, Google is in effect stating that it is subject to no national law. If no national law applies, to what law is Google subject? Floating in “the cloud” does not put any company above the law; the Internet is not a “law-free” zone. Indeed, Google’s assertions are further undermined by the fact that it regularly complies with de-listing orders as required by law—for instance, to comply with “right to be forgotten” orders in Europe. Google’s Transparency Report also reveals that they routinely remove websites from their search results at the request of governments, courts, and of their own volition in cases of child pornography or hate speech.
To reiterate, Google is not above the law just because it operates in multiple jurisdictions.
As to whether the Court’s requirement is reasonable in terms of implementation, this should not be a concern. In its pleadings on December 6, Google’s counsel acknowledged it possesses the means to de-list and de-index websites. As noted earlier, Google does so routinely. However, Google argued that while it was acceptable for it to de-list websites at its own editorial discretion, that action was totally different from being ordered to do so by a court. Pressed by Mme. Justice Abella as to what harm would come to Google from implementing the Equustek order, Google argued, (unconvincingly in my view) that it would interfere with its editorial function by not allowing it to fully index all results in its algorithms. This allegedly would downgrade the effectiveness of its search function, and by extension, would damage its reputation. This suggests Google believes that protecting its commercial reputation is more important than taking an action—one that it is fully capable of taking–in response to a court order to protect the integrity of commerce on the internet.
When it was pointed out that Google indexed all sites, legal or illegal, since algorithms are agnostic, Google argued that it was simply a “passive intermediary” and could not be expected to have knowledge of which websites were legal and which were not. That is true. However, the whole point of the Equustek case was to bring to Google’s attention the fact that Datalink was engaging in illegal activity. The guidance provided by the court would enable Google to take action against such sites. Thus, on the one hand, Google is arguing that it is a “passive bystander” with no knowledge of what is or is not an illegal site, but on the other it resists implementing action required of it as a result of a court decision when illegality has been established. That’s what I call trying to have your cake and eat it too.
This case has important implications—but not because the internet is about to be “broken”. It has been inaccurately portrayed by some as being a threat to freedom of expression on the Internet. There are legitimate concerns about the role of some governments in curtailing internet freedoms, but this limited injunction is not part of that threat. Rather, what this case has established (so far) is that the rule of law applies to businesses and persons operating in the digital environment just as it does in the non-digital world. The rule of law needs to be upheld in both the online and offline worlds so that people can engage in legitimate activities safely and to ensure that illegal bad actors are held accountable.
The Supreme Court of Canada has reserved its decision.
© Hugh Stephens 2016. All Rights Reserved.