Canadian Court to the Entire World: No Links For You!
The Supreme Court of British Columbia has ordered Google to remove entire domains from its search results—a decision that could have enormous global implications on free expression. This is the latest of several instances of courts exercising dangerous jurisdictional overreach, where they have applied local laws to remove content on the Internet. Not only did the Court order Google to delete the site from its search results on the Canadian “Google.ca” domain, it went even further by demanding it censor the domain worldwide by deleting every instance of the site from its global index.
The case, titled Equustek Solutions Inc. v. Jack, involved a trade secret fight between two Canadian companies. One sued the other for allegedly stealing the designs of some of their products and selling them on their website. The plaintiff claimed that Google facilitated access to this illegitimate online vendor through its search platform. Initially, Google voluntarily took down specific URLs that directed users to those products and ads under the local Google.ca domains, but the Court decided that was not enough. The judge ultimately ruled that Google must delete the entire domain from its search results, including all other local domains such as “Google.go.uk” and even the main site “Google.com”.
Oddly, the judge in this case seemed unfazed by the wide-ranging implications of this order. Based upon the assumption that users would simply switch to other variants of the Google domain, she decided that for any blockage ruling “to be effective, even within Canada, Google must block search results on all of its websites” and that any other external impacts are a “separate issue.”
The decision is a massive overreach. The removal of the defendant's entire domain from Google's local Canadian sites would have already been excessive. Although it cannot be confirmed from official reports, this one could have carried other legitimate products unrelated to the plaintiff's designs, or even hosted a blog or discussion forum with other users' comments and submissions. For example, the U.S. seized and took down the hip-hop culture website, Dajaz1.com, due to some allegedly copyright infringing works that was shared on the platform even while most of the site’s pages contained lawful content. It's not clear whether such considerations were made at all, and that is terrifying on its own.
But the court went even further, ordering Google—a company based outside its jurisdiction in California—to censor the site worldwide. If left unchallenged, this could leading to a slippery slope of ever more countries feeling empowered to mandate global online censorship. If a Turkish court were to find that a certain protest site was illegal, would intermediary services like Google be forced to remove all references of the domain name from its site? Or if Ethiopia mandated the deletion of all sites referring to imprisoned journalist, Eskinder Nega, would online platforms be forced to comply with that order?
Those are only a few examples of how such a precedent could dangerously expand. If courts become empowered to demand intermediary platforms remove and take down domains worldwide, that could be the end of online free expression as we know it. And if history has taught us anything, authorities are very good at creatively constructing legitimacy to shut down speech. This case alone is evidence of that: the judge mentioned that she was inspired by the recent EU rulings on the “right to be forgotten,” and felt that forcing global removals was just a way to “keep up with the times.”
We can imagine how problematic this would be if it were applied to copyright infringement. There is already a history of cases in which government agencies have taken down entire domains over allegations of content piracy. The United States has been especially guilty of this. One of the most glaring cases involve Immigrations and Customs Enforcement (ICE), when it took down a Spanish sports streaming site, Rojadirecta. It is alarming that any government agency, anywhere in the world, would have the authority to unilaterally remove an entire website, especially when doing so may violate another country's strong legal protections for the right to free expression. This kind of forceful takedown of domains is exactly the kind of sweeping censorship that what we fought against in the SOPA and PIPA bills defeated over two years ago. No matter what the charges are, there is no reasonable justification for intermediaries to block an entire website over content that only some of the pages contain.
Thankfully, Google has indicated that it intends to appeal the decision to prevent this from becoming a dangerous new precedent. It is as important as ever that intermediaries, such as search engines, Internet service providers, and domain name registrars, be protected as neutral platforms. They are often attractive targets for those who want those services to help them remedy alleged wrongdoing. But dragging intermediaries into court as implicit facilitators of unlawful activity creates a wide range of negative, unintended consequences for the Internet. Just because a party has been wronged does not mean that they are entitled to any and all remedies. Going after intermediaries is an easy shortcut, but one with too many costly ramifications.
Thanks to Tamir Israel of CIPPIC.ca for providing excellent analysis in preparing this post.