Last month’s Supreme Court of Canada decision upholding a global takedown order requiring Google to remove search results on an international basis sparked widespread concern from civil liberties and digital rights groups who fear the implications for freedom of expression online (the case was celebrated by IP rights groups who now envision using Canada as the base for global takedowns). My initial post on the decision argued that the Court had failed to grapple with the elephant in the room, namely the broader implications of global takedowns and the likelihood of conflicts:
The Supreme Court of Canada did not address the broader implications of the decision, content to limit its reasoning to the need to address the harm being sustained by a Canadian company, the limited harm or burden to Google, and the ease with which potential conflicts could be addressed by adjusting the global takedown order. In doing so, it invites more global takedowns without requiring those seeking takedowns to identify potential conflicts or assess the implications in other countries.
The prospect of global conflicts has now come to the Equustek case with Google filing suit in a federal court in California asking the court to block enforcement the Canadian order on the grounds that it violates the U.S. constitution and federal laws.
The case is reminiscent of the first big Internet jurisdiction case: the 2000 Yahoo France case in which a French court ordered the removal of certain content and Yahoo sued in U.S. courts to block enforcement of the order. The suit suggests that the Equustek case may run for several more years as the U.S. courts consider whether to stand aside in the face of foreign courts issuing global takedowns that impact what their citizens can access online.
The Google suit states:
Google now turns to this Court, asking it to declare that the rights established by the First Amendment and the Communications Decency Act are not merely theoretical. The Canadian order is repugnant to those rights, and the order violates principles of international comity, particularly since the Canadian plaintiffs never established any violation of their rights under U.S. law. Pursuant to well-established United States law, Google seeks a declaratory judgment that the Canadian court’s order cannot be enforced in the United States and an order enjoining that enforcement.
Google’s suit to block the Canadian order is grounded in three arguments. First, it points to the First Amendment freedom of expression implications of the order, noting that there are many less restrictive options available:
Enforcing the Canadian Order in the United States would violate the First Amendment. The Canadian Order furthers no compelling interest (nor a substantial interest), and is not narrowly tailored to achieve one. The existence of the Datalink websites is, and remains, a matter of public record. Equustek cannot show that it has no alternatives available other than enjoining Google’s search results outside of Canada. Upon information and belief, Equustek has not sought similar delisting injunctions against the world’s other search engines, such as Bing or Yahoo; has not taken action against other third-party websites (such as social media or press websites) displaying links to Datalink websites; has not pursued more targeted remedies against Datalink’s registrars or its webhosts, which could remove Datalink’s websites from the internet entirely; and has not stopped the sale of Datalink’s products through Amazon. Equustek did not even seek to seal the Datalink website addresses themselves before any court.
Second, it argues that the order is inconsistent with the Communications Decency Act, which grants immunity to Internet intermediaries for posting third party content. While the CDA excludes U.S. IP law, Google notes that this is Canadian trade secret law case that does not involve U.S. intellectual property rules.
Third, Google makes the case that the order violates U.S. public policy:
The Canadian Order is further repugnant to United States public policy because it issued an injunction against Google, an innocent non-party, merely for the sake of “convenience.” The non-party injunction standard applied by the Supreme Court of Canada did not come close to satisfying well-settled United States law for imposing injunctions. The Canadian standard only considers “the balance of convenience,” and not the “balance of equities,” and the Canadian court placed the burden on Google, a non-party, to disprove Equustek’s rights in every country outside of Canada, rather on Equustek, the plaintiff in the action, to prove its entitlement to removal of search results in each country in which it sought removal. Moreover, the Canadian standard took no account of the “public interest” at all.
This latest legal turn is precisely what critics of the Supreme Court ruling feared as the prospect of conflicting rulings, protracted litigation, and legal uncertainty becomes a reality. While the Supreme Court’s decision avoided mandating monitoring or assigning liability to intermediaries, by upholding global takedowns without fully addressing the implications (the Court of Justice of the EU was recently asked to do so), it effectively invited other courts to issue conflicting decisions without guidance on how to best resolve the issue.