Should a search engine like Google be exempt from the application of Canadian law simply because it operates in multiple jurisdictions? Would freedom of expression on the Internet be jeopardized without such an exemption? On December 6th, the Supreme Court of Canada held a hearing on just this issue.
The facts of the original case between B.C. companies Equustek and Datalink are not in dispute. Datalink is a spectacularly “bad actor” that appropriated trade secrets, tried to pass off its copycat products as those of Equustek — to the point of substituting Equustek labelling on its own products and misdirecting customers through false advertising on its website. It continued to do so despite restraining court orders.
From 2012 on, the B.C. court imposed numerous orders on Datalink to prevent this online behaviour but the company disappeared “online” and continued its activities, marketing the infringing products to customers both inside and outside Canada from unknown locations. As part of the litigation, Equustek requested that Google de-list Datalink’s websites. Google initially agreed but restricted the de-listing to Google.ca. This solution was ineffective as Datalink continued to operate in defiance of the court order. Finally, in June 2014 Equustek petitioned the court and won an interim injunction requiring Google to de-index any Datalink websites globally. Google appealed.
Floating in the ‘the cloud’ doesn’t put tech companies in a ‘law-free’ zone
The Supreme Court hearing on December 6 saw Google argue that being required to de-index a particular website would interfere with its editorial function by not allowing it to fully index all results in its algorithms. This would, according to Google, downgrade the effectiveness of its search function, and by extension would damage its reputation. At the same time, Google admitted that it regularly de-indexes various websites at its own editorial discretion, yet somehow being compelled by a court to do so, for very specific reasons, is anathema to the company.
Google, and other intervenors supporting Google, also argued that if Google submitted to the Canadian injunction, this would imperil free speech and freedom of expression on the Internet. The argument goes like this: If Google is required to comply with a Canadian court order wherever it does business, the Internet will become unworkable and precedents will be set that could lead to authoritarian states requiring the de-indexing of websites they don’t like.
One can generate all kinds of hypothetical and sensational examples to create uncertainty, but they are well beyond the scope of this particular case, which is solely concerned with preventing Google from directing consumers to the websites of a particular “bad actor” whose conduct is clearly illegal in every conceivable jurisdiction — a point uncontested by Google. As a global operator, Google may face challenges from particular national jurisdictions on occasion; that is one of the consequences of operating a worldwide business. It does not follow, however, that because it has a global presence, Google is not required to comply with specific national court rulings on the mistaken premise that to do so might require it to comply with other rulings for other reasons in other places.
In challenging whether it is subject to Canadian law in a case that clearly involves companies under Canadian jurisdiction, Google is in effect stating that it is subject to no national law. Floating in “the cloud” does not put any company above the law; the Internet is not a “law-free” zone. Indeed, Google’s assertions are further undermined by the fact that it regularly complies with de-listing orders as required by law. Google’s Transparency Report reveals that it routinely removes websites from its search results at the request of governments, courts, and of its own volition in cases of child pornography or hate speech.
This case has important implications — but not because the Internet is about to be “broken.” It has been inaccurately portrayed by some as being a threat to freedom of expression on the Internet. There are legitimate concerns about the role of some governments in curtailing Internet freedoms, but this limited injunction is not part of that threat. Rather, what this case has established (so far) is that the rule of law applies to businesses and persons operating in the digital environment just as it does in the non-digital world. The rule of law needs to be upheld in both the online and offline worlds so that people can engage in legitimate activities safely and illegal behaviour is punished.
Hugh Stephens, executive fellow at the University of Calgary School of Public Policy, writes a copyright blog at www.hughstephensblog.net.