A Supreme Court of Canada ruling ordering Google Inc. to remove international search results will ultimately give the Internet giant more power, not less, a prominent Canadian law professor has warned.
Announced on June 28, the 7-2 decision in Google v. Equustek requires Google to remove search results that could lead users who reside anywhere in the world to the website of Datalink Technology Gateways Inc., which Canadian industrial automation services firm Equustek Solutions Inc. claims re-labeled one of its products in 2011 and began passing off as its own.
When Equustek asked Google to remove Datalink from its search results, the company voluntarily did so for Canadian searches, but not from searches worldwide – a decision first disputed by British Columbia’s Supreme Court, then upheld Wednesday by the provincial court’s federal counterpart.
In a lengthy blog post, University of Ottawa technology law professor Michael Geist said that while understandable on its surface the decision, which amounts to a global takedown order, could have terrifying implications in the future.
“Google will obviously abide the ruling, but… what happens if a Chinese court orders it to remove Taiwanese sites from the index? Or if an Iranian court orders it to remove gay and lesbian sites from the index?” he wrote. “Since local content laws differ from country to country, there is a great likelihood of conflicts. That leaves two possible problematic outcomes: local courts deciding what others can access online or companies such as Google selectively deciding which rules they wish to follow.”
Unfortunately, rather than address the decision’s broader implications, the Supreme Court of Canada limited its reasoning to the trials faced by Equustek, which struggled in vain to push Datalink’s website offline before obtaining an order from the British Columbia Supreme Court, and the relative ease with which Google could comply, Geist said.
Indeed, while writing the majority decision on the federal Supreme Court’s behalf, Justice Rosalie Abella noted that “the issue in this appeal is whether Google can be ordered, pending a trial, to globally de-index the websites of a company which, in breach of several court orders, is using those websites to unlawfully sell the intellectual property of another company.”
“Characterized that way, the outcome to uphold the order is no surprise,” Geist wrote. “The decision acknowledges the challenge of a global Internet order, but concludes that an international takedown is necessary to provide the Canadian company with an effective remedy.”
Google itself had not argued that eliminating Datalink from international search results would be an inconvenience, Geist noted, admitting that it often does so in the case of links that are found to contain child pornography, hate speech, or that violate the U.S. Digital Millennium Copyright Act. Instead, the risk comes from conflict of law and the potential for global takedown orders coming from across the planet – potentially opening the door for other countries to choose what Canadians can find in search results.
And, Geist says, Google will then have two choices: attempt to navigate the morass of contradictory orders – which could indeed become a headache – or pick and choose which countries it listens to.
Check out Geist’s tweetstorm, which also refers to last week’s Supreme Court decision subjecting Facebook Inc. to class action lawsuits, and read more about it on his blog, below.
1/10 A few thoughts on today’s SCC Google v. Equustek ruling on global Internet takedowns https://t.co/sD0wfpAjDG
— Michael Geist (@mgeist) June 28, 2017
2/10 Ruling not a huge surprise. Combined with Facebook ruling, court emphasizing need for local remedies vs. Internet giants.
— Michael Geist (@mgeist) June 28, 2017
3/10 Problem is that unlike the Facebook case, decision vests more power with the intermediary, not less.
— Michael Geist (@mgeist) June 28, 2017
4/10 If Canadian court can issue global takedown, so can anyone. Will ultimately fall to Google to decide which orders it will follow.
— Michael Geist (@mgeist) June 28, 2017
5/10 Court’s language on onus a big concern. Says inequitable for Equustek to have to demonstrate where order will be permissible…
— Michael Geist (@mgeist) June 28, 2017
6/10 That effectively shifts burden to Google. Do we want Internet companies playing role of legal analysts on conflicts? Will they?
— Michael Geist (@mgeist) June 28, 2017
7/10 Given free speech concerns, decision disappointingly light on analysis. Says it’s easy to remove results, so not inconvenient to Google
— Michael Geist (@mgeist) June 28, 2017
8/10 But the inconvenience isn’t technical. It’s the legal challenges of global orders that may conflict and limit access to legit content.
— Michael Geist (@mgeist) June 28, 2017
9/10 Finally, case shows cumulative effect of global takedowns. Each may be seen as limited and justifiable, but net effect creates…
— Michael Geist (@mgeist) June 28, 2017
10/10 expectation all courts/govt’s can issue them. Conflict of laws + power to intermediaries inevitable https://t.co/sD0wfpAjDG
— Michael Geist (@mgeist) June 28, 2017
