The Supreme Court of Canada’s De-Indexing Decision: Does it Widen or Constrain Google’s Power?

http://www.scc-csc.ca

In my previous blog on the Supreme Court of Canada’s (SCC) decision requiring Google to de-index from its global search the website of a company (Datalinks Gateways) that had been found by the BC Supreme Court to be infringing the intellectual property of another BC company, Equustek Solutions, I commented that the decision was a victory for both the rule of law and for common sense. The Court dismissed Google’s appeal of the earlier BC decision on a number of grounds, including rejection of the argument put forward by a number of intervenors supporting Google who claimed that a world-wide de-indexing order would interfere with freedom of expression on the internet. The Court explicitly rejected that argument, reasoning that reasonable enforcement of intellectual property laws and freedom of expression on the internet are two different issues.

This conclusion did not satisfy groups like the Electronic Frontier Foundation (EFF), who claimed that the decision amounted to legalizing internet censorship, or some other critics, notably prolific Canadian IP blogger Michael Geist. Geist, who on several occasions has argued that the SCC should overturn the BC ruling and uphold Google’s appeal, has taken a different tack–although he also supports the EFF position that the SCC decision interferes with internet freedom. Geist argues that the SCC decision is dangerous because it has empowered Google to choose which laws to follow and which to ignore. He contends that the decision,

“invites courts around the world to issue global takedown orders that will likely lead to increased incidents of legal conflicts. That could vest enormous power in the hands of intermediaries such as Google, which will either remove links to content that is lawful in some countries or pick and choose among the orders they are willing to follow”. (emphasis added)

This assertion is overblown, and does not stand up to scrutiny. It suggests, for example, that Chinese or Iranian courts are now going to take into account this Canadian Supreme Court decision regarding a very specific and limited IPR infringement case to impose political restrictions on search engines. If China wants to lean on Google to block or alter search results, the SCC decision will have no bearing on what China chooses to do or not do. The dispute between Google and the Chinese authorities over search results—which resulted in China blocking Google search on the Mainland several years ago—is proof of this.

To refresh memories, Google and China butted heads over Chinese insistence that Google sanitize and censor search results on Google.cn. For example, a search of the term “Tian An Men” on Google would normally reference not only the actual square in the centre of Beijing but also the protests and what some call a “massacre” that occurred there in 1989 when student protestors were forcibly removed by Chinese troops, with considerable bloodshed and loss of life. China didn’t and doesn’t like this, especially for Chinese language users, and back in 2010 threatened to revoke Google’s licence to operate in China if Google did not cooperate to modify search results on its Chinese search engine. Google responded by announcing that it would no longer maintain separate search results for China but would re-direct search queries from within China to its Hong Kong domain search engine, which was uncensored. (There were other issues too, such as Chinese hacking of Gmail accounts and government threats to user privacy). The end result was that Google ceased to operate a .cn domain search engine and China blocked, and continues to block, all Google search domains, Gmail and YouTube. It was the revenge of the Great Firewall of China.

The route that Google chose to take in China is very different from that taken by one of its competitors in the search market, Microsoft’s Bing, which was able to reach an accommodation with China. Although Microsoft has recently thrown in the towel regarding Bing and is now using a Chinese search engine, Baidu, to power its search in China, Bing was able to continue to operate in China whereas Google was not. At the end of the day, multinational companies have a choice; comply with the law in the country where they are doing business or, if they feel they cannot comply or come up with a suitable workaround, they must cease to do business in that jurisdiction. The SCC’s Google decision is not going to change that reality.

Geist points out that Google will almost certainly comply with the Canadian court order. After all, it has admitted that it poses no difficulty for the company to do so and that it maintains a dedicated staff to do just that—remove listings that offend laws against child pornography, hate speech etc.—categories that are virtually universally illegal, just as blatant infringement of intellectual property rights is illegal in all jurisdictions (at least I can’t think of a single country where IPR theft is legal, even though the law might not always be enforced).

I suppose you could argue that Google’s decision to respect Canadian law, (or for that matter EU law with regard to the decision of the EU antitrust authorities that Google is engaging in monopolistic practices by directing consumers to its own shopping sites) —while deciding not to give in to the Chinese authorities with regard to search results in China —means that technically it is “picking and choosing” which laws to follow. But this is not new and has nothing to do with the SCC’s decision. Rather, it has everything to do with China’s political control of the internet and is an issue that companies like Google, Twitter and Facebook face every day as they operate in different legal jurisdictions.

For the SCC to have supported Google’s contention that it was not bound by Canadian law with respect to global search involving a Canadian company would have in fact resulted in the very outcome that Prof. Geist says he is concerned about. It would have conferred enormous power on intermediaries such as Google to decide whether to comply voluntarily with the law or not. If Google felt like de-indexing a site, it could do so but if, for its own internal reasons it didn’t feel so inclined, then the decision would be Google’s and Google’s alone.

Since Google made it plain that it would not voluntarily de-index Datalink’s results on its search engines outside Canada, and fought the Canadian lower court decision by taking it all the way to the Supreme Court on appeal, the SCC’s decision is an important victory for the rule of law. Rather than widening Google’s power, as Prof. Geist has suggested, it does just the opposite. It rightly subjects this internet search monolith to the rule of law just like any other commercial enterprise. That is an important and helpful precedent.

© Hugh Stephens, 2017. All Rights Reserved.

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