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

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.

Author: hughstephensblog

I am a former Canadian foreign service officer and a retired executive with Time Warner. In both capacities I worked for many years in Asia. I have been writing this copyright blog since 2016, and recently published a book "In Defence of Copyright" to raise awareness of the importance of good copyright protection in Canada and globally. It is written from and for the layman's perspective (not a legal text or scholarly work), illustrated with some of the unusual copyright stories drawn from the blog. Available on Amazon and local book stores. View all posts by hughstephensblog