Google by Travis Wise (CC BY 2.0) https://flic.kr/p/rEx9kx

Google by Travis Wise (CC BY 2.0) https://flic.kr/p/rEx9kx

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How the Supreme Court Can Avoid Turning the Internet Into an Online Wild West

Last week, the Supreme Court of Canada heard arguments in a case that strikes at the heart of law in the online world. Google v. Equustek Solutions stems from claims by Equustek, a Canadian company, that another company used its trade secrets to create a competing product and engaged in misleading tactics to trick users into purchasing it.

After struggling to get the offending company’s website taken offline, Equustek obtained a British Columbia court order requiring Google to remove the site from its search index. 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 B.C. court affirmed that the order applied on an international basis, however, issuing what amounted to global takedown order.

The Supreme Court hearing, which attracted intervenors such as the Wikimedia Foundation, Electronic Frontier Foundation, as well as the music and movie industry associations, focused on issues such as the effectiveness of a Google-targeted order, where the responsibility for identifying conflicting laws should lie, and the fairness of bringing an innocent third-party such as Google into the legal fray.

My Globe and Mail opinion piece notes that largely missing from the discussion was an attempt to grapple with perhaps the biggest question raised by the case: In a seemingly borderless Internet, how do courts foster respect for legal rules and avoid vesting enormous power in the hands of Internet intermediaries who may ultimately find themselves picking and choosing among competing laws.

Google seems unlikely to ignore a Canadian court order, but what happens if a Chinese court orders it to remove Taiwanese sites from the index?  Or if an Iranian court orders it to remove gay and lesbian sites from the index?  Since local content laws differ from country to country, there is a great likelihood of conflicts. That leaves two possible problematic outcomes: local courts deciding what others can access online or companies such as Google selectively deciding which rules they wish to follow.

Courts seeking to strike the right balance face a difficult challenge because if they are unable to assert jurisdiction, the Internet risks becoming a proverbial “Wild West” with no applicable law. If every court asserts jurisdiction, however, the online world becomes over-regulated with a myriad of potentially conflicting laws.

The temptation for courts will be to assert jurisdiction over online activities and leave it to the parties to sort out potential conflicts. But when it comes to Internet jurisdiction, exercising restraint and limiting the scope of court orders is likely to increase global respect for the law and the effectiveness of judicial decisions. The full column is posted here.

5 Comments

  1. ” namely the dangers of ceding decision-making on whether to abide by the law to global Internet giants such as Google and Facebook”

    I don’t see the “danger”. Canada has the choice to apply the law globally without authority to do so or not apply it globally.. either way the decision is Googles. Is the danger supposed to be realizing that companies don’t have to follow laws we dictate outside of Canada?

  2. It would be nice to have more facts. The description in the [BCSC judgment](http://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc1063/2014bcsc1063.html) doesn’t provide much context.

    It would be interesting to know why the business focused on search engine results. Why not look to resources used to carryout the improper conduct, such as [domain names and registrars](https://www.icann.org/en/system/files/files/guidance-domain-seizures-07mar12-en.pdf) or hosting?

    Granted, the jurisdictional issues might still remain. However, at first glance, and without knowing more, an injunction regarding the resources used to carryout the improper conduct would seem more targeted.

    Note: Hope your comments use markdown. Otherwise this comment is going to be difficult to read.

  3. To assert its global jurisdiction the court must be prepared to enforce some given consequence for non-compliance. In case of internet domains the consequence can be to ban it within our jurisdiction and force ISP to comply and blacklist said domain. Third party (ISP) objections that it can not be done will cast doubts to any claims to the real existance of any type of internet security. Side effect might be development of better replacement websites in Canada and good for our economy.

    • Unfortunately, due to the Investor State Dispute stuff in NAFTA (and soon / aready other agreements) doing stuff like that could turn out to be VERY nasty for Canada.

  4. Pingback: Law and Media Round Up – 9 January 2017 | Inforrm's Blog

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