Google is no stranger to litigation, but for the past couple of years, the company has been fighting a case in Canada that could have far-reaching implications — not only for Google, but for the global internet-using population.
In light of this, a number of technology firms, human rights groups, media companies, and freedom-of-speech bodies are coming to the internet giant’s defense.
In the beginning
The background to the case dates back to 2011, when Canada-based industrial networking company Equustek began proceedings in the Supreme Court of British Columbia for an injunction to be brought against a competitor called Datalink Technologies. Equustek argued that Datalink had infringed on Equustek’s intellectual property rights with products sold under the Datalink brand. The long and short of this case was that Datalink was ordered to stop selling the products in question, but because Datalink had seemingly shifted to an entirely online operation, Canadian authorities were unable to enforce the ruling. Datalink continued to sell the products, and warrants were ultimately issued for the arrest of key personnel in the company.
Running out of options to prevent Datalink from marketing the products, Equustek turned to the mighty Google for help, asking it to block the company’s websites from search results. The internet giant voluntarily agreed to de-index some specific URLs, as requested. But Google didn’t go far enough, in the eyes of Equustek, which wanted entire websites de-indexed from Google’s search results. Indeed, though the defendants had originally operated out of Vancouver, they subsequently switched to using a “complex and ever expanding network of websites through which they advertise and sell their product,” a court document noted.
Thus, in 2014, Equustek filed a motion against Google Inc. and Google Canada Corporation to force the search engine to comply with its requests. In June of that year, Equustek received a favorable ruling from the Supreme Court of British Columbia, which agreed that for the ruling against Datalink to be impactful, Google would have to take a more holistic approach to de-indexing the implicated sites.
Not only had Google refused to de-index entire domains, but the 300-plus URLs it had agreed to de-index were restricted to the Google.ca search engine in Canada. Given that the defendants in the case were savvy enough to know that moving the products to a different web page on the domain would be enough to bypass the block in Canada, and since the bulk of Datalink sales were outside of Canada anyway, this meant that the scope of a Canada-only restriction would have little effect on Datalink’s ability to sell the products. In view of the situation, the court granted a worldwide injunction against Google.
British Columbia’s highest court dismissed an appeal from Google in June 2015, leaving Google with one final avenue of recourse. In February of this year, the Supreme Court of Canada (SCC) agreed to hear Google’s appeal.
“This case raises important questions about the freedom to access information on the internet, and whether one country can determine what the rest of the world can see online,” a Google spokesperson said at the time.
The Supreme Court of Canada will soon have to assess whether Canadian courts have the authority to block search results outside of Canada’s borders, and under which circumstances a litigant can seek an injunction against a “non-party” that had nothing to do with the original lawsuit — in this case, Google. A spokesperson has confirmed to VentureBeat that it submitted its brief to the Supreme Court last month, and it expects the court to hear the case in early December.
David Price, Google’s lead product counsel, provided VentureBeat with this statement:
Courts and regulators should think carefully before they seek to impose extraterritorial orders. If you export global removals, you may import them, and the trade balance may not be in your favor.
Wikipedia’s parent organization, the Wikimedia Foundation, announced yesterday that in support of Google, it has filed what’s known as a motion to intervene, whereby applicants offer the court an alternative perspective on the issues at hand.
“An order of this kind threatens the free flow of information on the internet,” explained Michelle Paulson, legal director at the Wikimedia Foundation, in a statement. “Not only does it lack geographic or temporal limits — it is indefinite, and worldwide — but it was issued against an organization that was uninvolved in the underlying dispute and that was not accused of any wrongdoing. It is questionable whether such orders would be appropriate under any circumstances, but if considered, courts should take far greater care to safeguard free expression.”
The statement continued: “We believe we must speak up in this case, with the hope that the Canadian Supreme Court will see the far-reaching impact such orders can have upon free speech, access to knowledge, and the internet at large.”
The Wikimedia Foundation isn’t the only body to file a motion in support of Google — according to the SCC’s official proceedings page, the following entities have recently filed motions to intervene: eBay, Kickstarter, Foursquare, Software Freedom Law Centre, Center for Technology and Society, Dow Jones & Company, the Electronic Frontier Foundation (EFF), Reporters Committee for Freedom of the Press, American Society of News Editors, Association of Alternative Newsmedia, The Center for Investigative Reporting, First Amendment Coalition, First Look Media Works, Human Rights Watch, Article 19, and Open Net (Korea).
If the court grants the respective parties leave to intervene, they would typically have around eights weeks to submit a more formal brief outlining their case.
Perhaps support shown by prominent third parties could be enough to sway the country’s highest court. But if what’s been happening in Europe over the past couple of years is anything to go by, nothing can be taken for granted.
The case in Canada bears striking resemblance to the so-called “right-to-be-forgotten” ruling in the European Union, the result of a 2014 directive by the Court of Justice of the European Union (CJEU). The ruling was designed to help individuals hide web pages that contain out-of-date, irrelevant, and ultimately “damaging” information about them, but it has led to a great deal of conflict between Google (as the biggest search engine) and national law makers.
Indeed, while Google finally agreed to hide search listings on all global Google domains accessed from within the EU country in which the removal request was made, France requested that the web pages in question be hidden from all internet users globally — something that Google is continuing to fight.