The release of the Supreme Court of Canada’s Google v. Equustek decision attracted global attention with many rightly focused on the implications of global takedown orders for freedom of speech online (my post on the case here, Daphne Keller, EFF, Howard Knopf, Techdirt). The decision raises serious concerns as it invites courts around the world to issue global takedown orders that will likely lead to increased incidents of legal conflicts. That could vest enormous power in the hands of intermediaries such as Google, which will either remove links to content that is lawful in some countries or pick and choose among the orders they are willing to follow.
The music industry was unsurprisingly elated at the decision, rushing out a press release welcoming the ruling. Canada is already home to some of the toughest anti-piracy laws in the world including an “enabler provision” that establishes the legal tools to target sites that facilitate infringement. The prospect of global takedown orders of search results could lead to a steady stream of cases before Canadians courts with the industry using the Equustek case to target links to foreign-based sites.
While that is a troubling proposition, the industry has tried to suggest that the decision went even further. The Music Canada press release quotes President and CEO Graham Henderson:
Today’s decision confirms that online service providers cannot turn a blind eye to illegal activity that they facilitate; on the contrary, they have an affirmative duty to take steps to prevent the Internet from becoming a black market.
Yet the Supreme Court said no such thing. In fact, the majority stated precisely the opposite, emphasizing that there was no obligation to monitor content and no liability for facilitating access. The court states at paragraph 49:
The injunction does not require Google to monitor content on the Internet, nor is it a finding of any sort of liability against Google for facilitating access to the impugned websites.
The music industry may have wanted the Supreme Court of Canada to establish an affirmative duty on Google to monitor content, but the ruling is unequivocal that there is no such requirement as a result of the Equustek decision.