In the aftermath of the European Court of Justice “right to be forgotten” decision, many asked whether a similar ruling could arise in Canada. While a privacy-related ruling has yet to hit Canada, last week the Supreme Court of British Columbia relied in part on the decision in issuing an unprecedented order requiring Google to remove websites from its global index. The ruling in Equustek Solutions Inc. v. Jack is unusual since its reach extends far beyond Canada. Rather than ordering the company to remove certain links from the search results available through Google.ca, the order intentionally targets the entire database, requiring the company to ensure that no one, anywhere in the world, can see the search results. Note that this differs from the European right to be forgotten ruling, which is limited to Europe.
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. 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? The possibilities are endless since local rules of freedom of expression often differ from country to country. Yet the B.C. court adopts the view that it can issue an order with global effect. Its reasoning is very weak, concluding that:
the injunction would compel Google to take steps in California or the state in which its search engine is controlled, and would not therefore direct that steps be taken around the world. That the effect of the injunction could reach beyond one state is a separate issue.
Unfortunately, it does not engage effectively with this “separate issue.”
The case involves a company that claims that another company used its trade secrets to create a competing product along with “bait and switch” tactics to trick users into purchasing their product. The defendant company had been the target of several court orders demanding that it stop selling the copied product on their website. Google voluntarily removed search results for the site from Google.ca search results, but was unwilling to block the sites from its worldwide search results.
The case turned largely on jurisdictional questions: could a B.C. court assert jurisdiction over Google? Was a Canadian court the right court to hear the case when Google is based in California? Is it appropriate to issue an order requiring the complete removal of results for all users worldwide?
The court answered affirmatively to all questions. On the issue of jurisdiction, the court cited the European Court of Justice decision, concluding that the companies search and advertising services were inextricably linked and that therefore Google has a Canadian connection. As for concerns that the decision would give every state jurisdiction over Google, the court was unmoved:
I will address here Google’s submission that this analysis would give every state in the world jurisdiction over Google’s search services. That may be so. But if so, it flows as a natural consequence of Google doing business on a global scale, not from a flaw in the territorial competence analysis.
Further, on concerns that the B.C. court order would have global effect, the court was similarly unpersuaded:
I note that Google objects to British Columbia retaining jurisdiction because the order sought would require Google to take steps in relation to its websites worldwide. That objection is not resolved by “going to California”. If the order involves worldwide relief, a California court will be no more appropriate a forum than British Columbia to make such an order. Even if the order can be construed more narrowly as requiring Google to take steps at the site where the computers controlling the search programs are located, Google has not established that those computers are located in California, or that they can only be reprogrammed there.
The issues raised by the decision date back to the very beginning of the globalization of the Internet and the World Wide Web as many worried about jurisdictional over-reach with courts applying local laws to a global audience. This decision provides the sense that the court felt that Google’s global reach needed to be matched by the court’s reach. While there is much to be said for asserting jurisdiction over Google – if it does business in the jurisdiction, the law should apply – attempts to extend blocking orders to a global audience has very troubling implications that could lead to a run on court orders that target the company’s global search results.
impossible
and google will ignore them. Mickysoft is challenging the the ‘right’ for enforcement to snoop extra-territorial clouds, too.
The nations ‘rights’ do not extend past the ‘public’ domain; not globally.
or you’d be guilty and ‘liable,’ for transgressing flordia’s laws.
pat
And yet another fail…
What about Bing, Yahoo, DuckDuckGo, etc.
This is the wrong approach. You want these site gone, go after the registrar and hosts. Unfortunately, I can’t file schedule A so can’t check what those are.
Familiar, look at eBay
This seems less of an issue than what is being presented. This is largely the same thing that eBay has been dealing with, and created VERO for.
When someone sells a counterfeit product, unless they have a worldwide patent via WIPO, the jurisdiction only goes as far as to where the product has been patented and granted protection. When it comes to copyright itself, … let’s just say Google has been complicit or ignorant to much the same excuses I heard by eBay management.
~If they can not prove ownership, no action will be taken [No matter how obviously fake, counterfeit or illegal it is here]~ This is why you keep seeing fake LV products show up on eBay, eBay staff won’t proactively remove anything, because of safeharbor provisions, unless reported by members of the site.
So coming back to Google, in trying the privacy route. This is really not any different than the copyright route. Only the privacy route here suggests that anyone, anywhere, could compel any site, to remove any content they find objectionable as long as there is a privacy argument to be had. If “corporations are people”, then that also gives that right to corporations, and we certainly do not want this, otherwise corporations will just use the law to to strongarm websites (google, wikipedia, etc) to remove all negative reviews, criticism, sites. That would be the end of sites like 4chan and reddit.
Seems to be wrong target
If I understand this correctly – the Offending Company lost the court battle and was found to be infringing? I would hope that that company was required to remove said products from their website (are they .ca too?). I could see the court asking Google to refresh the search results for that company and expunge the old data.
For the greater question though – I agree. This seems like a tool for rewriting history. Public records searches, historical documents, reviews of conflicts. How much can be erased? And remember it is only erased from the Search engine – not from the original content itself. There are two situations I see – when has a person paid their debt and recording changes throughout history.
This is akin to removing the index card from the card-catalog at the library – without removing the book from the shelf.
Google could ignore them, true… but depending on how how far this particular case goes, then they might have to remove all of their physical presence in Canada as a result. One is compelled to wonder if the court has even considered the possibility that this may be their only ultimate option for actually enforcing this decision.
All about the dollars
Google makes a lot of money both selling Canadian eyeballs to advertisers, and selling generic eyeballs to Canadian advertisers. They won’t voluntarily give either of those up, so in fact the court does have some clout available if it decides to exercise it.
Logical Response
Google slips some Russian court a large cash envelope, receives an order from Russian court to remove all links to B.C Supreme Court of Canada on account of the site referencing laws which protect gays. Google complies. Tit for tat.
corrrection
B.C Court, not B.C Supreme Court of Canada 😛
Contradictions
What if another court overturns the ruling? If Google must comply with rulings from all courts, how can it do two contradictory things?
Tailor searches to “Country of Origin”
It seems to me that all Google has to do is tailor it’s search results specifically to the country where the search request came from.
They already know this location because they offer a localized search as default (.ca, .fr, .com, etc.).
It should not be too difficult to remove prohibited websites from the results going to a particular jurisdiction, regardless of which Google version is used.
I realize this is not 100% blockage, but since the websites themselves cannot be removed, nothing will be 100%.
Enforceability outside of Canada
The fact that Google has a Canadian subsidiary could mean they have no choice but to comply, but what about companies that have no Canadian subsidiary? Would the US government recognize a foreign judgment if the judgment were in conflict with US law (letter of the law, due process, constitutionality)? Can a foreign court impose an unconstitutional judgment upon an American company just because it has a worldwide online presence?
BC GOVERNMENT IS CONSERVATIVE, WHY THE LIBERAL LABEL ???
michaelheroux1967@gmail.com
“requiring Google to remove websites from its global index”
I wonder if that is just BC links or all Canadian links from the global index. It should be on a case per case basis.
There’s a very simple way to prevent future orders
Just remove all commercial Canadian web sites from all search results. Problem solved: no more counterfeit Canadian products will be sold on the Internet. Nor any Canadian products, whatsoever.
Break Google’s Business model or Canada’s
To suggest any court or government can enforce such an order as a “natural consequence of Google doing business on a global scale” is not valid. AS indicated in prior comments, remove the website from the Internet by going after the company (and the hosting ISPs) and Google would have nothing to index.
Perhaps, Google should flip the coin on its head and given Reductio ad absurdum, this would break Google’s global business model; Google should simply remove itself from Canada and block all Canadian IP addresses from accessing its services. This would hardly impact the global revenues of Google, but what would the impact be to Canada and Canadians?
If this decision were applicable to a person (aren’t corporations people, too), then such a ruling would surely violate the Charter’s Principles of fundamental justice.
Judge Luri Ann Fenlon is has made false judgments in the past and this one smells bad
How did Fenlon get to her current position? Maybe it’s time to put her out to pasture.
This ruling is invalid and is incompatible under international law
No judge of any jurisdiction can order google to censor results legally other than those from the jurisdiction of the country.
In this case google.ca
Google must not comply because Canada only can censor their own site not the whole worlds.
The times they are A Changin
Is it just me or is nobody getting this yet, we are now in the final stages of Globalization “NO TURNING BACK FOLKS”. YEs that’s right the final stages of Globalization, why, simple we do things differently now and an action anywhere can be felt somewhere else in the world via the internet. While some may argue it will never happen, wake up, it is happening as we type. Think about this, unlike days of old note that people who commit crimes in there own country are even being snatched up and sent to America soon it won’t be America land of the free but America land of the imprisoned. Yes there are some good points raised here such as can Iran request Israel be left out of its database. Soon we will see an international court formed for the internet and no longer will you be extradited or even face justice in a specific country, soon if you break elaw you will be sent to the Haig to stand trial.
“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? The possibilities are endless since local rules of freedom of expression often differ from country to country. Yet the B.C. court adopts the view that it can issue an order with global effect. ”
I think these questions would come into play in terms of the enforceability of an order. Just because a foreign court grants a court order against Google does not mean that order will be enforceable against Google outside of the jurisdiction where the order is granted. In enforcing a foreign order, domestic courts will consider whether the order is objectionable on a public policy grounds. So were Russia or Iran to issue an offensive order, in all probability the Californian court would decline to enforce it.
Chaos Theory
This is what happens when lawyers/judges who have no clue about how internet plumbing really works make decisions.
The judge blew it. She did understand that Canada can’t extra-territorially apply it’s laws & rules — only the US can.
Chaos ensues.
The lawyer for the plaintiff should have got a copyright/trademark/design patent/theft of trade secrets/breach of contract ruling from the courts. They then should have taken that ruling and made the case that the infringers domains be taken down, and that ‘Jack’ should be enjoined for any further domain registrations. Then based on these rulings from a competent court in Canada, the judgement could have been sought to be enforced in the US as well with TLD registrars.
How will Google know if ‘Jack’ registers a domain in Moldova to sell the same things? It won’t. And even if it algorithmically ‘knew’, the Moldova domain would be ranked about 100,000th and be on page 50,000 and never be seen anyway. But ‘Jack’ probably really only wants to sell his knock-offs in G8 countries anyway, so all the plaintiff had to do is watch for sites popping up selling the knock-offs in those countries and use its Canadian judgements to work with registrars there.
Considering the rise in such rulings around the world, I am wondering if Google can use a punitive measure to discourage individuals and businesses from abusing laws and courts in this way. Google is a private enterprise, and as long as it is not under any contractual obligation with an individual or company, it has no obligation to provide a service to them.
In this case, Google can implement an internal policy that individuals or companies that resort to legal action to impose censoring of search results, will be subjected to “death on the Internet”; i.e. completely eliminated from any Google search results. I doubt that a company would ever resort to such court action if, as a result, its own web site could not be found on any Google search. Is there any law to prevent Google from taking such action?
The same principle can also be applied to individuals who request the right to be forgotten. If someone wants to be forgotten on the Internet, s/he should not be able to pick and choose. Google could simply remove their names from any future search result. This way, some politician or businessman would not dare requesting deletion of some unfavourable links or sites if s/he knows as a result, his own site would be disappeared from the Internet.
/really/ bad decision
the judge is going to get slapped down hard on appeal. there is just no freaking way they can dictate to a company how they do business in other countries. the judge has lost a lot of credibility. anyone else going up before that judge in court is going to have a smirk on his face.
the sheer stupidity of the decision is boggling.
Normally injunctive relief is limited
to situations of “irreparable harm”, where the hard can’t be recovered in money damages. I can’t on the news stories figure out how the judge even gets to the point of stopping the defendants from selling, when the plaintiff can just take any wrongful profits back from them in damages. Deny the injunction, try the case on the merits, and audit the defendant for whatever, if anything, it did wrong. Seems like a bad assessment of the case for injunction.
complected discussion
judgement is not well i think they have have to think once again on this
http://www.jyotipaperplate.com/
complected discussion
judgement is not well i think they have have to think once again on this
http://www.jyotipaperplate.com/
Not saying this is a great decision, but how is this any different that the more than 10 million exact same decisions made by Google every year? The only difference I can see between this decision and the 10+ million yearly actions taken to remove links from Google’s search engine (see the Google Transparency Report www dot google dot com/transparencyreport/removals/copyright/requests/ ) is that in this one case there was some actual due process, unlike in the yearly 10+ million other cases the search results for those links are just removed on the say so of the complainant … no evidence needed, not trial required, just guilty till proven innocent, and if you believe you are innocent then you have to go to court to prove your innocence.
In both this case, and the “right to be forgotten” case, the target should be the source website, not a search engine that is simply cataloging what is already publicly published.
In the case of a fraudulent website, is there not already an internationally recognized body in place for dealing with cancelling the domain name registrations, handing them over to others, etc. (e.g. when there is a trade-mark dispute, or when the domain is seized for involvement in piracy, etc)…?
I suppose that the problem is that it is hard to go after dozens of sites that pop up, instead of just going to Google and saying, “take care of all of these illegal (or, “irrelevant”) sites/pages for us so we don’t have to spend money going after them individually…” It’s natural for the lawyers to be pushing for the easy route, I guess.
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Kudos to Justice Lauri Ann Fenlon of the BC Supreme Court for standing up to google – a $50 billion company that fights to the end to keep links up on its search engines that cause irreparable harm to individuals and companies. This case is not about censorship but about protecting a company whose company has been violated.
The public should be concerned of Google’s overbearing power and impact it has on the community – Google has become the gatekeepers of the internet and perhaps its time to bring Google’s 90% market share to 30% market share where it will actually start listening to the community and putting the safety of the public first. Perhaps its time for Google to be regulated by the CRTC which would which restrict Google’s freedom to do as it pleases.
Here is a considered opinion of the issues.
Contact
Q&A: Google ordered to remove links worldwide
The Supreme Court of British Columbia granted an interim injunction in the litigation between Equustek Solutions and Datalink on 13 June that orders Google to remove all links worldwide to a company selling its products online. Sophie Cameron of E-Commerce Law & Policy spoke to H. David Edinger, Associate Counsel at Singleton Urquhart, about the rationale behind the ruling and the likelihood of the ruling being struck down.
Are you surprised by the Court’s judgment?
No. In hindsight, I am surprised only that similar issues have not come up and no order like this has been made before in some other court. Datalink used an ever expanding network of web pages to defy the British Columbia court and continue to violate Equutek’s intellectual property rights, on a worldwide basis. Practically speaking, Equustek and the court needed to protect their interests; the order followed logically from those premises and the evidence before the court, and is an appropriate remedy in the circumstances.
Has the Court overreached here?
No. Not only did the court have a solid legal basis for taking jurisdiction over Google, and for refusing to give Google the ‘home court’ advantage it argued for, but Google raised no considerations which outweighed the harm Equustek was suffering at the hands of Datalink and, even more importantly, the need for the court to act when its prior orders were being flagrantly disobeyed.
What impact could this decision have on the internet as we know it?
Probably none, unless like Datalink you use the internet for illegal purposes. As the court and others have since noted, the risk of this type of decision already existed as a result of the very nature of the internet and Google’s business. As the judge said: ‘The Court must adapt to the reality of e-commerce 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.’ The effect of these types of orders will fall disproportionately or only upon those who act illegally and flout court orders.
What is the rationale behind the decision? Would it not have been more effective for Equustek to seek orders in each of the countries rather than issuing a global order?
The rationale of the decision was the simple practicality that because Datalink was not obeying the court’s orders, there was no other effective remedy for the court or Equustek. Google provided no alternative solution to the court except the idea that Equustek should fight jurisdiction by jurisdiction. This was no answer at all, particularly when Google conceded it could do what Equustek asked the court to order. If the British Columbia court put its head in the sand as requested, the result would only benefit Datalink. In how many jurisdictions would Equustek have to move to obtain relief anywhere near as effective as this court’s one order, and at what cost in time and further illegal sales by Datalink? By any measure, requiring Equustek to fight jurisdiction by jurisdiction would have been an unjust result.
Is the Court’s order to remove links worldwide a positive step in combatting illegal activities online?
This is the correct question to ask. That was the purpose of the order. So my answer is clearly ‘yes’ it is a positive step. Finding ways to combat illegal activities online requires as much or more imagination than those who are carrying them out. If Google is the gatekeeper at the entrance to those activities, then we may have to ask it to shut the gate from time to time. Google may not like it, but, again, we shouldn’t feel too sorry for Google, as that is the nature of the business it has undertaken.
Google’s opposition to the order also needs to be taken with a grain of salt. The evidence before the court was clear that Google both already filters search results, thus denying access to certain content and is able to do so worldwide. The latter might surprise many as most people see only the Google facing them, like Google.ca, without realising that Google provides multiple portals to the internet.
The order points the way for other courts to provide strong remedies to enforce court orders and particularly to companies facing theft of intellectual property and other similar issues which may require logical and justified restrictions on e-commerce and search engine providers in particular.
Why does the Court’s order only apply to Google, given that other search engines will still be showing the links?
The evidence before the court was that Google accounted for 70% to 75% of search engine usage. Google’s search engine services were clearly the primary vehicle for the illegal Datalink web sites to be seen. The court was not asked to make an order against any other search engine provider. Equustek may make further application(s) with respect to other search engine providers, but it may also have additional homework to do to establish that other search engine providers are able to act conveniently on a worldwide basis, as Google conceded it was able to do, to obey a similar order in the same way.
Google has said that it will be appealing the decision – do you think that the global order will be struck down?
As I said in the National Post, based on the evidence at hand, I would not be surprised if the British Columbia Court of Appeal upholds the order. I expect the Court of Appeal will examine the legal basis for the lower court’s taking of jurisdiction over Google, but will likely find nothing amiss there: the decision that Google was amenable to the court’s jurisdiction is consistent with many other cases, including the Norwich Pharmacal line of cases cited to the court. This was not some exercise of proverbial Texas-like ‘long-arm’ jurisdiction. British Columbia’s common law (shaped by the Canadian Supreme Court’s decisions filed over the last 20 years) and its legislation – which requires judges to weigh interests carefully when jurisdictional issues are raised – were applied by an experienced judge. Once within the jurisdiction, Google, unwitting as it may have been, was open to be ordered by the court to do anything that Google was capable of doing, worldwide. Those who seemed worried by the ‘implications’ of the decision have focused narrowly on the ‘worldwide’ order, but like any Mareva order, there was a person before the court who was asked to do something in a foreign jurisdiction. Courts have done that many times over many years.
Do you think that there is a global move towards making internet search companies responsible for removing more and more content?
The content of the web sites removed was irrelevant at this stage of the Equutek proceedings. They should not have been up at all if Datalink had obeyed the court’s original orders. Google was not required to police content or make any judgment calls – it was responsible only for de-indexing specific web sites.
As I noted in the National Post article, from personal experience in my practice I know that every day, Google and other website operators wrestle with whether posted content violates the laws of defamation, privacy, copyright and trademarks. If there is such a global move, it may not be a bad thing (unless you believe that laws concerning defamation, privacy, copyright and trademarks are not justified), but a full and empirically justified answer to your broad question requires much more time and effort than I can put in at the moment and so I must leave an answer for another day.
Is the widespread concern about this decision valid?
I think there is now more widespread support amongst those who have considered the basis for the decision carefully. I think the concern arose out of unfounded concerns for what a ‘rogue’ court might order Google to do, which hasn’t that happened yet, may never, and wasn’t the facts of this case. It may also have come as a surprise that Google both already filters search results, thus denying access to certain content and is able to do so worldwide. But as the more sober commentators, whose voices now seem to be rising to the surface, are noting and the court stated, the court’s order flowed from the worldwide nature of Google’s business and abilities to control its own search engine results. I am fairly confident any remaining concern will melt away, particularly if the Court of Appeal upholds the order.
Anything else you would like to add?
The court recognised that it needed to find a way to protect its process and the intellectual property rights of Equustek on a worldwide basis in the multijurisdictional world of the internet. It found a practical way to accomplish that, thanks to Google, albeit over its objections.
H. David Edinger Associate Counsel
Singleton Urquhart, Vancouver
dedinger@singleton.com
Since you are the one who asked for and you are the man,
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far from smelling like a slice from an orange.
The last longer stay of the aromatic compounds in perfume and cologne make the best sale of
the product.