Does a Canadian court have jurisdiction over Google‘s operations beyond our borders? Can it compel the company to block an entire Web site from it search engine results around the world?
These questions cropped up following a recent ruling by the B.C. Supreme Court in the case of Equustek Solutions Inc. v. Jack wherein the court granted an interim injunction ordering Google to block Web sites associated with a company that is alleged to be selling products it copied from the plaintiff. The ruling, made last week, comes on the heels of a decision by the European Court of Justice which last month which upheld that European data protection laws include an individual’s “right to be forgotten” with respect to Internet search engine results that are “inadequate, irrelevant or no longer relevant.”
It appears thought that the Canadian court’s ruling may have more far reaching implications for Google since the precedent-setting decision involves blocking an entire Web site globally, whereas the EC ruling compels Google to comply with request by individuals to remove links to unflattering or objectionable personal data only in Europe.
The case stems from complaints by Equustek, a B.C. company that manufactures gateway bridges and custom protocol conversion communications products, that Morgan Jack, Andrew Crawford and Datalink Technologies Gateways Inc. conspired with former engineering employees of Equustek to design and manufacture a competing product using Equustek’s trade secrets. Equustek said the product was advertised on the defendant’s Web site.
“The Court must adapt to the reality of ecommerce with its potential for abuse by those who would take the property of others and sell it through the borderless electronic web of the Internet,” wrote Justice Lauri Ann Fenlon in her ruling. “I conclude that an interim injunction should be granted compelling Google to block the defendants’ websites from Google’s search results worldwide.”
“That order is necessary to preserve the Court’s process and to ensure that the defendants cannot continue to flout the Court’s orders,” she wrote.
Legal experts and privacy advocates noted that the B.C. Supreme Court’s decision could have some serious repercussions.
“…the order intentionally target’s the entire database, requiring the company to ensure that no one, anywhere in the world, can see the search results,” wrote Michael Geist, Canada Research Chair for Internet and e-commerce law at the University of Ottawa, in his blog. “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.”
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“What happens if a Russian court orders Google to remove gay and lesbian sites from its database? Or if Iran orders it to remove Israeli sites from the database?” Geist asked.
“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 for the Canadian Internet Policy and Public Interest Clinic (CIPPIC) said in an interview with the Vancouver Sun.
He said it “opens the door to a lot of potentially problematic impacts down the road.”
Google argued that it provides an important and valuable tool for navigating hundreds of trillions of Web pages on the internet and that it cannot monitor content or arbitrate disputes over content. Because of the enormous volume of content Google said it cannot determine whether information is inaccurate or lawful; and because content on Web sites is constantly changing. The company also argued that de-indexing entire Web sites without regard to content of the specific URLs would constitute undue censorship. As well, Google said puts it in a position of being ordered to do something that would require the company to break laws in another jurisdiction.
However, Justice Fenlon said that the court “has authority to issue an injunction with extra-territorial effect against a non-party…”
Fenlon said the order does not require Google to monitor the defendant’s web sites but “simply require Google to remove all of the defendant’s web sites from its searches.”
“To put it simply, it is not a question of blocking what is being said, but rather who is saying it,” according to Fenlon. “The order is, in many ways, only a slight expansion on the removal of individual URLs, which Google agreed to voluntarily.”
Google has become the gatekeepers of the internet – Google more and
more is refusing to remove links to websites, posts which cause
irreparable harm to companies and individuals whether it be defamation
or companies involved in illegal activity.
By way of google’s 80%+ share of the search engine market, google has become the defacto gatekeepers of the internet. A single company with over 50 billion in
revenues decides on behalf of the world what information is accessible
on the internet and what is not. This is too much power for one company.
The public should be concerned of the overbearing power that Google
has.
The court decision was justified in that the internet is
limitless and worldwide and the harm to the company is impacted not only
in Canada.
In Dow Jones & Company Inc. v. Gutnick, [2002]
H.C.A. 56 (10 December 2002), that same judge – Kirby J., of the High
Court of Australia — portrayed the Internet in these terms, at para. 80:
The
Internet is essentially a decentralized, self-maintained
telecommunications network. It is made up of inter-linking small
networks from all parts of the world. It is ubiquitous, borderless,
global and ambient in its nature. Hence the term “cyberspace”.4 This is a
word that recognizes that the interrelationships created by the
Internet exist outside conventional geographic boundaries and comprise a
single interconnected body of data, potentially amounting to a single
body of knowledge. The Internet is accessible in virtually all places on
Earth where access can be obtained either by wire connection or by
wireless (including satellite) links. Effectively, the only constraint
on access to the Internet is possession of the means of securing
connection to a telecommunications system and possession of the basic
hardware.