Google’s End Run on the Canadian Supreme Court’s De-Indexing Order: Strengthening Arguments for Site Blocking – Hugh Stephens

7 12 2017

Google has successfully convinced a judge in the tech industry-friendly US District Court of Northern California (covering Silicon Valley naturally) to issue a temporary injunction nullifying the enforceability in the United States of an order from a Canadian provincial court in British Columbia (BC), upheld on appeal to the Supreme Court of Canada (SCC), to delist from its global search results all references to Datalink Technologies Gateways and its counterfeit product, an internet router called the GW1000.

Datalink was found by the BC court to have infringed the copyright and stolen trade secrets from Equustek, a BC company, and passed off Equustek’s products as its own.

Google agreed to block search results in Google.ca but refused to do so in its global search results until ordered to do so by the BC Supreme Court, a decision upheld by the Supreme Court of Canada. After losing its SCC appeal, Google then sought an injunction in the US blocking the enforceability of the SCC order in the US. Equustek did not appear in the US to oppose the request for injunction, arguing only that Google’s application was “unnecessary” since it had never sought to have the order enforced in the US. The global de-indexing order by the BC Court was designed to deter global sales of the infringing products but also to deter Canadians from going around Google.ca to access the offending websites through other Google domains. On this point, the Court said,

“…although Google has a website for each country to which searches made within that country default, users can override that default and access other country’s Google websites. For example, even if the defendants’ websites were blocked from searches conducted through http://www.google.ca, Canadian users can go to http://www.google.co.uk or http://www.google.fr and obtain results including the defendants’ websites.”

In seeking the injunction in the US, Google argued that the Canadian order violated freedom of expression (First Amendment of the US Constitution) and that it was protected from such an order by virtue of immunity provided to internet intermediaries through Section 230 of the Communications Decency Act (CDA), and further that the Canadian order was contrary to “international comity” (i.e. the respect for one country for the legal jurisdiction of another). The judge granted the temporary injunction on the basis of Google’s status as a neutral intermediary under Section 230 but did not address the other arguments.

Having won a temporary injunction, Google will no doubt seek to make the injunction (blocking enforcement of the Canadian order in the US) permanent and will probably then return to Canada to challenge the original order in BC by showing that the BC order “violates the law of another country”. The SCC had, in effect, invited Google to do just that stating that Google’s argument that complying with the Canadian order would violate the laws of another jurisdiction were “theoretical”. At first blush, it may seem that this is no longer theoretical—but let’s be careful. Google is not required to enforce the Canadian order in the US, but would it violate US law if it did so? That, it seems to me, is another question.

Google would be entirely within its rights, and would not violate US law, if it decided on its own volition to de-index the offending sites. It has no legal obligation to index any particular website. If anyone’s rights of freedom of speech are infringed by the Canadian order, it is those of the original defendant, Datalink Technologies, but that is like saying that websites that engage in illegal behaviour (such as copyright infringing sites) have an inherent right to be included in search indexes.

What is clear is that suspending the enforcement of the Canadian judgement in the US does not get Google off the hook in Canada. The BC Court order is still enforceable in Canada, where Google does business, and if Google refuses to comply, they could be held in contempt. Google is unlikely to take that risk so obtaining the US injunction is more of a chess move than a desire to restore the search results for Datalink Technologies Gateways on Google.com and its other search sites.

As noted above, the California court granted Google the injunction on the basis that it is a neutral intermediary and not a publisher, although the judge’s decision does say that in addition to undermining the policy goals of Section 230, the Canadian order “threatens free speech on the global internet”. The SCC had rejected “freedom of internet expression” arguments by concluding that the delisting order applied only to a narrow set of circumstances where it was clear in Canada and in other jurisdictions that illegal acts had been committed. In the words of the Court, “We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods”. Google argued that if the Canadian court order was upheld this would open the door to application of court orders from jurisdictions such as North Korea. This may sound ridiculous, but hyperbole can be effective. Apparently, in this case, it was.

There are clearly arguments on both sides of this, and Google is far from being out of the legal woods. One result of these legal shenanigans is that we now have conflicting court interpretations, an outcome that some, such as Michael Geist who had opposed the SCC decision, have decried as leading to legal uncertainty and protracted litigation. This is probably inevitable in a borderless internet where intermediaries like Google will argue that they cannot be forced to obey national law in one jurisdiction (e.g. Canada, EU—will the US be next?) because to do so might conflict with interpretation of national law elsewhere. In other words, Google would be effectively beyond the law.

The case also brings up some other interesting legal issues. In a post titled, “US court thumbs its nose at Supreme Court of Canada”, Canadian IP lawyer Barry Sookman argues that not only was the Northern California court’s decision wrong, but that the court

completely by-passed the customary conflicts of laws principles generally applied by courts including US courts in determining whether, as a matter of comity, a foreign judgment should be enforced.”

Sookman says this should be viewed as an “international incident” and suggests that Canada address issues arising from the Google order in NAFTA negotiations. In fact, US negotiating objectives for NAFTA, most recently updated in November, include the following;

“establish rules that limit non-IPR civil liability of online platforms for third party content, subject to NAFTA countries’ rights to adopt non-discriminatory measures for legitimate public policy purposes”.

If Canada were to make such a commitment in NAFTA, it would seem to be contrary to the SCC’s decision in the Equustek case. In Sookman’s view,

U.S. social media companies should not have blanket immunities under the CDA (i.e. Section 230) that automatically immunizes them from Canadian court orders and Canada should use NAFTA to reach a more balanced compromise.”

NAFTA has many sticking points. Maybe this will be one of them.

This is a very complex and interesting legal case that raises a number of issues relating to comity and legal conflicts. It also exposes a weakness of national laws in regulating and controlling the behaviour of rogue websites operating outside national jurisdiction. After all, if the Canadian authories had been able to shut down the Datalink websites set up abroad, there would have been no need to require Google to block search results. As the Google-Equustek case shows, increasingly we are going to face situations where, because of the global nature of the internet, legal decisions in one country will have an impact on businesses and consumers in another. Fertile grounds for lawyers.

If this is the case, what can national jurisdictions do to minimize conflict and ensure the straightforward application of their own laws, within their own boundaries, when it comes to illegal content on the internet? For example, both France and Germany have laws in effect that ban the sale of Nazi memorabilia on the internet. Yet, if you are resident in the US, Canada, UK or anywhere outside these jurisdictions, if you search for Nazi memorabilia through Google or other search engines, you will find lots of sites. Rather than trying to get the search engines to limit search results (given the long drawn out process resulting from the LICRA/Yahoo case), France and Germany have imposed blocking orders on ISPs operating within their jurisdiction in order to effectively enforce the application of national laws on their own sovereign territory. If the search engines are reluctant to cooperate, one answer is to require ISPs to block searches of specified domain names. In this way, when an internet user requests access to a prohibited site, the link will be blocked in the ISP’s domain name server and the user will receive a “site not found” response. It is the same principle that applies to the blocking of child pornography.

Site blocking could be one remedy for Canada to use in dealing with the situation where an unwilling and powerful Google seems intent on fighting tooth and nail against any attempt to bring it under national law. If such a mechanism were in place, a court could order Canadian ISPs, the backbone providers that provide internet access to all residents of Canada, to block all sites associated with Datalink Technologies. This would ensure that even if Canadians could find illegal websites by going through Google or other search engines, they would not be able to access them as the sites would be blocked. This would not stop users in other countries from patronizing the sites, but at least it would deal with the domestic aspect of the problem.

Site blocking, or disabling access to infringing sites, can be employed for various purposes, among them copyright infringing (content theft) sites. This tool is employed successfully in a number of jurisdictions, the UK, Australia, Portugal, France, Korea, Italy and others being good examples. In fact more than 40 countries world-wide have or are in the process of putting in place site blocking legislation to deal with pirate sites that facilitate illegal streaming and downloading of pirated content. The selection of which sites to be blocked is done through a transparent process, either judicial or administrative. Among the countries that do not, at this point, have site blocking are Canada and the US, although recently in Canada there have been calls to implement such a regime from a major Canadian content player and telco. (Bell Media)

In the US, an attempt to bring in a site-blocking regime through the Stop Online Piracy Act (SOPA) in 2012 was sabotaged by a massive lobby campaign orchestrated at the last minute by the high-tech industry. SOPA died under this onslaught. However, site blocking has recently re-emerged in the US in a case pitting the American Chemical Society (ACS) against Russia-based science pirate site Sci-Hub. The judge issued an order stating that any party “in active concert or participation” with Sci-Hub should cease facilitating access to the repository. This could mean that the ACS will request ISPs and search engines to block access to Sci-Hub, although the case is still playing out in court.

The Google-Equustek case, and the lengths to which Google will go to avoid taking any responsibility for facilitating infringement and illegal behaviour, demonstrate that site blocking may be the easiest and most (maybe only) effective way for national authorities to deal with rogue websites that set up in jurisdictions beyond the reach of domestic law. Site blocking can be a very useful tool to enforce domestic law within national borders and avoids the sort of extraterritorial conflict that will inevitably become increasingly prevalent. It is anyone’s guess as to what the long-term outcome of Google’s most recent court manoeuvres will be—but one consequence could be to make site blocking look a lot more attractive as an option to block rogue websites.

© Hugh Stephens, 2017. All Rights Reserved

This post originally appeared on the Hugh Stephens Blog and is reproduced with permission and thanks.


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