The challenge of jurisdiction and the Internet has long been one of the most contentious online legal issues. Given that the Internet has little regard for conventional borders, the question of whose law applies, which court gets to apply it, and how it can be enforced is seemingly always a challenge.
Striking the right balance can be exceptionally difficult: if courts are unable to assert jurisdiction, the Internet becomes a proverbial “wild west” with no applicable law. Conversely, if every court asserts jurisdiction, the Internet becomes over-regulated with a myriad of potentially conflicting laws vying to govern online activities.
My weekly technology law column (Toronto Star version, homepage version) notes that in recent years, courts in many countries have adopted a reasonable balance where they are willing to assert jurisdiction over online activities or companies where there is a “real and substantial” connection, but they limit the scope of enforcing their rulings to their own jurisdiction. In other words, companies cannot disregard local laws where they operate there, but courts similarly should not disregard the prospect of conflicting rules between different countries.
For example, the recent European Court of Justice decision on the “right to be forgotten”, which requires Google to remove links to certain content, is based on European privacy law and is limited in application to the European Union.
Earlier this month, the Supreme Court of British Columbia confronted a similar issue “whether it could assert jurisdiction over Google and how far to extend its order to remove links from the search giant’s index” but adopted a far more aggressive approach. Rather than ordering Google to remove certain links from the search results available through Google.ca, the order intentionally targets the entire database, requiring the company to ensure that no one, anywhere in the world, can see the search results.
The case involves a Canadian company that claims that another company used its trade secrets to create a competing product along with “bait and switch” tactics to trick users into purchasing their product. The defendant company had been the target of several court orders demanding that it stop selling the copied product on their website. Google voluntarily removed search results for the site from Google.ca search results, but was unwilling to block the sites from its worldwide index.
The court was concerned that a Canada-only order would be ineffective since Canadians could still access links to the site if they switched from Google.ca to a different country site such as Google.com. Yet even with a global court order, Canadians could still use competing search engines to find the same information. Moreover, that same order blocks content in countries where there was presumably no awareness of the competing site and no commercial impact.
More troubling are the broader implications of the ruling, since if a Canadian court has the power to limit access to information for the globe, presumably other courts do as well. While the court does not grapple with this possibility, what happens if a Russian court orders Google to remove gay and lesbian sites from its database? Or if a Saudi Arabian court orders it remove Israeli sites from the index? The possibilities are endless since local rules of freedom of expression often differ from country to country.
The ruling provides the sense that the court felt that its reach needed to match Google’s global footprint. While there is much to be said for asserting jurisdiction over Google – if it does business in Canada, then Canadian law should apply – attempts to extend blocking orders to a global audience could lead to a run on court orders that target the company’s global search results.
That would leave two possible problematic outcomes: Google would selectively decide which court orders it wishes to follow or local courts would begin deciding what the rest of the world can access online. Either way, the overreach of the B.C. court could lead to legal conflicts online and potential suppression of freedom of speech on the Internet.