“Ha, told you so”, seems to be the reaction from anti-copyright circles to Google’s decision to seek a US court ruling to block enforcement (in the US) of a British Columbia court order, upheld on appeal to the Supreme Court of Canada (SCC), that requires Google to de-index from its search engines world-wide listings for a Canadian company that has been found guilty of intellectual property infringement by stealing trade secrets from a Canadian competitor and then passing off the copycat products as originals. Google is seeking relief from the Canadian order in its home bailiwick via the US District Court for Northern California on the basis that the order violates the First Amendment of the US Constitution, the Communications Decency Act and is against the principles of international comity.
(Comity is defined by Webster, in the legal sense, as “the informal and voluntary recognition by courts of one jurisdiction of the laws and judicial decisions of another”.)
Rather than leading to legal uncertainty, as some claim, the SCC ruling ensures that Google cannot evade its legal responsibilities just because it operates in multiple jurisdictions. To have found otherwise would have left Google in the driver’s seat, deciding unilaterally which laws it chose to follow and which to ignore. While Google’s US court action will lead to further litigation, it could help clarify so-called “freedom of speech” arguments related to internet content. It is not a foregone conclusion that Google will prevail for several solid reasons.
The Google suit, which can be found here, states in part;
“Google now turns to this Court, asking it to declare that the rights established by the First Amendment and the Communications Decency Act are not merely theoretical. The Canadian order is repugnant to those rights, and the order violates principles of international comity…Pursuant to well-established United States law, Google seeks a declaratory judgment that the Canadian court’s order cannot be enforced in the United States and an order enjoining that enforcement.” (emphasis added)
According to Canadian law professor and blogger Michael Geist, “This latest legal turn is precisely what critics of the Supreme Court ruling (meaning Geist himself) feared as the prospect of conflicting rulings, protracted litigation, and legal uncertainty becomes a reality.” Geist had argued in an earlier post that the SCC’s decision had granted Google not less power, but more, on the basis that global takedown orders would empower Google and other internet intermediaries to become the arbiters of which laws to obey.
This argument stands things on their head. It is also an over-reaction to the Canadian decision which was narrowly constructed to focus on the specific case at hand (an egregious intellectual property violation) and which, rightly, ensured that those operating in a global internet environment are not above and beyond the reach of national law. As I wrote in an earlier blog, to have let Google off the hook on the basis of arguments that Canadian law did not apply to a dispute between two Canadian companies (in which Google was an unwitting facilitator of illegal activity) simply because the reach of the de-indexing order applied to websites and search engines located outside Canada would in fact confer enormous power on Google by allowing it to decide unilaterally whether it would voluntarily comply with the law (of Canada or other countries), or not. It would also have allowed Google to invoke successfully the shibboleth of jurisdictional conflict to evade compliance.
Rather than allowing Google to call the shots as to which laws it will follow, the SCC ruling upholds the imposition of legal obligations upon Google (which can be enforced through its operations in Canada) if it fails to comply. However, in dismissing Google’s arguments that complying with the Canadian order would put it in conflict with laws in other jurisdictions, the Court offered a qualification (and a possible out for Google), noting that;
“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.”
Now Google has taken the first steps to be able to do so—and this may not be such a bad thing. The fact that Google would seek relief in the US is hardly a surprise since it is doing exactly what the Canadian court invited it to do. Whether or not Google will be able to convince a US court that compliance with a Canadian de-indexing order–in a case involving prima facie intellectual property infringement–will violate its US Constitution First Amendment right to freedom of speech is another question. From a layman’s perspective, I would think that freedom of speech has limitations and does not extend to activity that is recognized as illegal in all, or virtually all, jurisdictions. As the Canadian Supreme Court ruling stated;
“This is not an order to remove speech that, on its face, engages freedom of expression values, it is an order to de-index websites that are in violation of several court orders. We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.”
There are nonetheless precedents that Google can point to, namely the LICRA v Yahoo case in 2000. In this case, a French court in a civil case found in favour of LICRA (Ligue contre le racisme et l’antisémitisme), requiring Yahoo France to take down a site selling Nazi memorabilia (the sale of which was contrary to French law). Yahoo then appealed the French judgement to the same District Court of Northern California on the basis of violation of its First Amendment rights and won a ruling that the French decision was inapplicable in the United States. (This was subsequently overturned on appeal). However it is hard to see the parallel between delisting a website that promoted the sale of memorabilia that was legal to sell in the US, and a website engaging in IP-infringing activity that would be as illegal in the US as it is in Canada.
Then there is the Communications Decency Act (CDA), which provides a safe harbour from financial liability to internet intermediaries who of their own volition remove “indecent” materials, with a carve-out provided for intellectual property. That legislation has been criticized because its use has gone well beyond the protections intended by Congress when it was enacted in the 1990s, which was to protect children from the proliferation of pornographic material online. The CDA would hardly seem to apply to Google in this case nor is there any apparent financial damage to Google from taking down a website selling illegal goods. Google’s lawyers, however, claim the CDA applies because it “provides clear legal immunity to providers of interactive computer services for content on their services created by others”.
Finally, on the issue of comity, there is always the question of which laws take precedence when there is a conflict. However, inasmuch as comity involves respect and recognition of the laws of other jurisdictions, it also gives due regard to the rights of its own citizens or others covered by the law. As law blogger Andrew Keane Woods has stated in his post on the blog Lawfare;
“While it is true that states regularly defer to other states’ interests in the name of comity, comity absolutely does not require courts to avoid acting extraterritorially. Extraterritorial exercises of court authority are especially common (and permissible) when the state is protecting the rights of its citizens, and that is precisely what the Canadian courts are trying to do.”
What all this adds up to will have to come out in court, but there are some pretty strong grounds to think that maybe Google will not get the US District Court to block the Canadian court order. Andrew Keane Woods has summarized his conclusions as follows:
“I’m skeptical of Google’s claims. At its core, Google’s argument is that the Canadian order conflicts with an American sovereign interest, and despite all the doctrinal footwork, I don’t see the sovereign interest in allowing Google to link to pages that are selling illegal goods.”
We shall see, but even if Google prevails, it will still face consequences in Canada if it ignores the Canadian court order (although it may be granted some relief in light of a US decision in its favour). More important, the law will have been given a chance to run its course and clarify contentious legal issues rather than simply allowing Google to unilaterally decide which laws it will follow, or whether or not it will follow the law. As Andrew Orlowski has put it;
“What should govern the behavior of huge multinationals like Google: the law Google makes for itself, or the laws that people make?”
There are important principles at stake here.
© Hugh Stephens 2017. All Rights Reserved.