The B.C. Court of Appeal has released its decision in Equustek Solutions Inc. v. Jack, a closely watched case involving a court order requiring Google to remove websites from its global index. As I noted in a post on the lower court decision, rather than ordering the company 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. That post notes:
The implications are enormous since if a Canadian court has the power to limit access to information for the globe, presumably other courts would 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 Iran orders it remove Israeli sites from the database? The possibilities are endless since local rules of freedom of expression often differ from country to country.
The B.C. Court of Appeal decision addresses two key jurisdiction questions: first, whether the court can assert jurisdiction over Google; and second, whether the court order can extend beyond Canada.
The first question is relatively easy. While Google argued that it does not have servers or offices in B.C., the court concluded that it still has a real and substantial connection to the province:
While Google does not have servers or offices in the Province and does not have resident staff here, I agree with the chambers judge’s conclusion that key parts of Google’s business are carried on here. The judge concentrated on the advertising aspects of Google’s business in making her findings. In my view, it can also be said that the gathering of information through proprietary web crawler software (“Googlebot”) takes place in British Columbia. This active process of obtaining data that resides in the Province or is the property of individuals in British Columbia is a key part of Google’s business.
The reference to Google collecting information in the province is an aggressive jurisdictional approach. Given that search engines (and many other sites) collect data from around the world, the B.C. Court of Appeal analysis would open the door to courts asserting jurisdiction over many websites and online services with limited connections to the jurisdiction. Indeed, this would seemingly be true even if the site had no business in the jurisdiction.
The second jurisdictional question spurred interventions from groups like EFF and CCLA, who were concerned with the free speech implications of a court order applied to the Internet far beyond B.C. On this issue, the court was not troubled by an order that applies beyond provincial borders, stating:
British Columbia courts are called upon to adjudicate disputes involving foreign residents on a daily basis, and the fact that their decisions may affect the activities of those people outside the borders of British Columbia is not determinative of whether an order may be granted.
Moreover, it noted that courts in other countries that have issued orders with international effects. Decisions cited include the infamous Yahoo France case and the recent right to be forgotten decision from EU. While those decisions might have been used to signify the need for caution, the court concluded that “international courts do not see these sorts of orders as being unnecessarily intrusive or contrary to the interests of comity.”
In light of the appellate decision, my conclusion from the earlier ruling remains unchanged:
While there is much to be said for asserting jurisdiction over Google – if it does business in the jurisdiction, the law should apply – attempts to extend blocking orders to a global audience has very troubling implications that could lead to a run on court orders that target the company’s global search results.
Google is reported to be reviewing the judgement with Internet law watchers waiting to see if it seeks leave to appeal to the Supreme Court of Canada.