The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Daphne Keller (Stanford Center for Internet and Society) graciously let me pass along this post of hers from Wednesday:
The Canadian Supreme Court this morning issued its long-awaited ruling in Equustek. The court upheld an order compelling Google to remove search results for specified websites, not just in Canada, but everywhere in the world.
The case was closely watched in part because of the message that it sends to other courts and governments, which are increasingly asserting their own appetites for global enforcement of national laws. In particular, the ruling may have ramifications for France's pending case about the "Right to Be Forgotten." In that case (which I've heard is finally moving forward after a spell in procedural limbo), French privacy authorities want Google to de-list results throughout the world on the basis of French laws—laws that would be unconstitutional in some other countries.
As Michael Geist notes in a perceptive blog post, the Canadian court barely grappled with this key issue: If Canada can enforce its laws to limit speech and information access in other countries, does it accept that other countries may do the same? Can Russia use its anti-gay laws to make search results unavailable to Canadians? If not, why not? Geist points out that the ruling effectively leaves Google to decide which countries' extraterritorial orders it will enforce, rather than providing meaningful public jurisprudence to answer these questions.
One reason the Court was unimpressed by the expression and information issues raised by Google and numerous amici was that, factually, this just didn't feel like a speech case. It arose from a trade secret dispute. Defendants sold a knock-off of plaintiff's industrial widget, and fled Canadian jurisdiction rather than defend the case. The question was whether Google, as a non-party facing no liability claims of its own, could be ordered to take down search results for defendants' websites. As amici like EFF pointed out, there are genuine issues of varying national law and speech rights here. But they don't particularly seize the imagination.
The ruling focuses rather mechanically on Canada's interlocutory injunction standard, and on courts' equitable powers to enjoin non-parties. (That last bit is interesting and relevant around the world—Martin Husovec does great work on this—but outside of Commonwealth countries I'm not sure Canadian analysis will matter much.) As to conflicts with the free expression laws of other countries, the Court says that Google did not prove that any existed. Procedurally, it's not clear if this means intermediaries should always bear this burden—which is a terrible idea in terms of incentives—or if Google just bears it here because the company conceded that conflict was unlikely.
Several knotty issues lurk in this blithe dismissal of expression concerns. Most importantly, the Court only asked whether Google would violate laws in other countries by complying with the Canadian injunction. This is a typical framing for conflict of laws or comity analysis, but it misses the point in free expression cases.
Private parties like Google have no affirmative obligations to protect Internet users' rights by indexing particular websites. So compliance with the order raises no "hard" conflict between Canadian law and, say, American or Brazilian law. But it does affect information and expression rights that governments must protect to different degrees in different jurisdictions. To properly focus on these rights, the better question would be whether courts in other countries would violate the law by issuing or enforcing the order. If we dismiss conflicts of this sort as "soft" or irrelevant, Internet users' rights fall out of the analysis completely.
Canada's endorsement of cross-border content removal orders is deeply troubling. It speeds the day when we will see the same kinds of orders from countries with problematic human rights records and oppressive speech laws. And it increases any individual speaker's vulnerability to laws and state actors elsewhere in the world. Content hosting and distribution are increasingly centralized in the hands of a few multinational companies—Google, Facebook, Apple, Amazon and Microsoft with their web hosting services, etc. Those companies have local presence and vulnerability to formal jurisdiction and real world threats of arrest or asset seizure in scores of countries.
A critic of, say, the Vietnamese government may be safely ensconced in the US or Germany, far from the reach of Vietnamese state power. But her online speech is not. It depends on the support of global intermediaries like Google if it is to easily be found. In practice it often depends on the support of web hosts like Amazon Web Services, as well. A country with no jurisdictional hooks to the speaker may very well have legal and practical power over these intermediaries. The Canadian decision increases the odds that this power will be exercised on a global rather than national basis—effectively reaching out and silencing speakers on the other side of the world.
The Canadian Court has lent its imprimatur and prestige to an alarming global trend, seemingly with little consideration of the consequences. But courts are not the only actors in this space. Legislatures have the authority to mandate more nuanced outcomes. Government agencies dealing with press freedom, trade, foreign relations, or Internet technologies have a stake in this as well. Our best hope may lie in engagement from these institutions of government, and a larger dialog about national laws and global information access.
Disclosure: As Associate General Counsel at Google, I was involved in setting and defending the company's removal policies at issue in this case, and worked on this particular case at the Court of Appeals stage.
A very important—and potentially quite dangerous—decision. See also this item from Mike Masnick (TechDirt). And a disclosure of my own: I've represented Google before on various matters, though none connected to this case, and no one at Google asked me to post about this.