Historic Russian censorship. Book “Notes of my life by N.I. Grech”, published in St. Petersburg 1886 by A.S. Suvorin. The censored text was replaced by dots.
June 13, in an apparent first-of-its-kind ruling, Justice Lauri Ann Fenlon of the Supreme Court of British Columbia, Canada, ordered Google to remove the Web site of a technology company from its search engine results worldwide, within 14 days.
Equustek, a Burnaby, B.C., technology company that manufactures networking devices for industrial equipment, alleges that its rival Datalink got together with a former employee to steal Equustek’s product design and sell it via the Internet.
Equustek had gotten court orders requiring that Google remove Datalink Web sites from Canadian search results, but that didn’t help much because more than 300 sites were selling the Datalink product worldwide. While Google had nothing to do with the dispute, its search engine proved a useful way to find these sites. The order requires blocking entire Web sites from Google search engine activity around the world, not just links to posts.
Google’s lawyers pointed out that the order against the Mountain View, California-based company is unenforceable worldwide, and the company plans to appeal.
At Canada’s Globe and Mail, law reporter Jeff Gray notes that Michael Geist, who holds the Canada Research Chair in Internet and ecommerce law at the University of Ottawa warns:
… it could lead to other countries demanding Google censor content worldwide, putting free speech at risk. “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?”
“I don’t know if the court took into account the full potential impact of this when it issued its decision,” said Tamir Israel, a lawyer with the Canadian Internet Policy and Public Interest Clinic. For example, he said the ruling opens the door to the possibility of a country blocking websites from search engine results to quash political dissent online.
The plaintiffs’ lawyer Robert Fleming responds that no court elsewhere would recognize such extreme orders against Google.
Excuse me. Excuse me. Stop right there, Mr. Fleming. What do you mean by “extreme orders”? There is nothing “extreme” in Russia about banning gay sites, or in Iran about banning Israeli sites. Or in China about banning sites discussing the slaughter in Tienanmen Square twenty-five years ago.
And that is precisely the problem with this myopic decision.
There isn’t a single worldwide standard for what is “extreme.” However, to create the impression of “doing something,” a minority can always be targeted for enforcement.
Search Engine Watch encapsulates the problem: “One Canadian court ruling would have you believe that global control is the answer.” (And apparently such control should be directed from … Canada … )
The judge thinks that’s just fine:
A Google spokesperson drew attention to the fact that the injunction would result in “imposing Canadian law around the world”. The judge’s response was, “well, we have to keep up with the times.”
On the surface, the case bears some resemblance to the European Union’s new (and deeply misguided) “right to be forgotten” laws, which, under some circumstances, allow individuals to request that search engines hide results pertaining to their pasts. But really, the Canadian ruling is vastly worse. The EU laws apply only within the EU—the European Court of Justice could hardly argue that it has authority to control what an American search engine shows to American users. But the British Columbia court bypasses this limitation by concocting a novel theory of universal jurisdiction, asserting authority to regulate every Google search performed anywhere on the planet.
The British Columbia court’s theory of universal Web jurisdiction, in other words, is pretty much the endgame of free speech on the Internet.
Except for one thing: When one judge in Canada does it, we can be fairly sure it will just get quietly buried somewhere, and the loser will be Canada. The real problems will start when judges in Russia, Iran, and China start making the same worldwide demands on behalf of morality, religion, or suppression of political dissent.
Meanwhile, Datalink’s name is now on the lips of many people who had never heard of its copycat product before. It, at least, should do all right out of all this.
Here’s the story about the recent European Union decision that enabled Europeans to demand that Google remove searches on embarrassing information about them:
Denyse O’Leary is a Canadian journalist, author, and blogger.
Hat tip: Franklin Carter at the Book and Periodical Council’s Freedom of Expression Committee