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A ruling against Google in Canada could affect free speech around the world

Rob Pegoraro
Contributing Editor
Google’s Canadian engineering headquarters in Kitchener-Waterloo, Ontario seen on January 14, 2016. (Reuters)

The Supreme Court of Canada issued an order to Google Wednesday: Stop showing search results for a company accused of fraud, not just in Canada, but throughout the world. Yes, that includes everybody reading this in America.

But the court’s ruling that the Alphabet. Inc., (GOOG, GOOGL) search subsidiary “de-index” the company could also invite other courts — including those in countries not as nice as Canada — to issue their own global takedown demands for other sites, which can easily lead to free speech being squashed.

And U.S. companies that want to do business in those other nations will have little choice but to comply. Too bad, eh?

Litigate locally, punish globally

This story started with a lawsuit filed by Barnaby, British Columbia-based Industrial-networking vendor Equustek Solutions Inc., alleging that a competitor, Datalink Technologies Gateways Inc., had started selling its technology as its own.

A lower court told Datalink to knock it off, but the firm then fled the province to “an unknown location” while continuing to hawk its wares online. 

Equustek asked Google to stop sending people to Datalink’s sales pages, and Google complied. But as Datalink kept moving the offending sales pitch from one page to another, Equustek asked Google to stop pointing people to Datalink’s site entirely — and to do the same around the world.

An appeals court granted that request, and Canada’s Supreme Court upheld that while rejecting free-speech arguments in a 7-2 ruling.

“This is not an order to remove speech that, on its face, engages freedom of expression values, it is an order to de-index websites that are in violation of several court orders,” Justice Rosalie Abella wrote. “We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.”

Google’s press office released a statement in response: “We are carefully reviewing the Court’s findings and evaluating our next steps.”

Corporations versus governments

The traditional view of trying to keep something off the internet, as Electronic Frontier Foundation co-founder John Gilmore points out is, “The Net interprets censorship as damage and routes around it.”

But multinational corporations, unlike internet packets, operate in fixed locations. They have employees that can be arrested, assets that can be seized and bank accounts that can be hit with fines.

Having any one country tell a company doing business there that it must take something offline within that country has always been a risk, and sometimes tech firms have opted not to run accept such demands — Google’s decision to pull out of the booming Chinese market over government censorship is a perfect example of this.

But Canada’s Supreme Court has flipped this script with its globally-binding ruling. Daphne Keller, a director of Stanford University’s Center for Internet and Society, called it “much more far reaching than most” in an email.

And the underlying offense here, an intellectual-property violation, is far from being something everybody can agree on as being beyond the pale worldwide. Said Keller: “I am in tons of discussions about this, and the one point of consensus is global removal of child pornography.”

Further, this isn’t just any rogue judicial body engaging in global grandstanding. “The Canadian Supreme Court is well respected around the world, and this ruling will carry some weight elsewhere,” emailed Michael Geist, a law professor at the University of Ottawa.

Geist, who had earlier urged the court to adopt a narrower remedy, said the judges should have limited their ruling to Google’s google.ca Canadian site.

Everybody loses

The court’s ruling is a mess all around. It won’t actually solve the problem of people finding undesirable content online for the same reasons that the European Union’s “right to be forgotten” doctrine can’t.

Like the EU’s “RtbF,” Canada’s ruling doesn’t encompass every search engine and says nothing about social media, with its proven ability to send massive amounts of people to a site. Nor can it stop individual people or sites from pointing to offending pages — something that can become more likely after a dose of publicity.

The problem looms much larger for everybody else online. Canadian judges may be a reasonable lot, but if they see fit to assert global jurisdiction, so can any other country’s judges.

In France, privacy regulators have fined Google a token amount for not honoring a right-to-be-forgotten request worldwide. (Memo to French president Emmanuel Macron: This is not a good look for will not help your startup nation ambitions.)

Libel laws are far friendlier to plaintiffs in the United Kingdom; imagine British courts deciding that their rulings must now apply worldwide?

And on Monday, Turkish president Recep Tayyip Erdoğan got a court order demanding that Twitter (TWTR) close the account of American Enterprise Institute scholar Michael Rubin. What if he forced Google to stop linking to attacks on him?

“What’s hate speech in France is free speech in the U.S.,” explained Pamela Samuelson, a law professor at the University of California at Berkeley. “What’s fair use in the U.S. may be infringing in Spain. What’s defamation in Australia or the UK may be protected speech in the U.S.”

In every case, the result will be courts overseas deciding what we as Americans can find online. And then maybe U.S. courts will return the favor, and the internet as a whole can get meeker and shallower, one ruling at a time.

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Email Rob at rob@robpegoraro.com; follow him on Twitter at @robpegoraro.