Google – you DO control your search results, thunders Canadian court

Us? Comply with the mere laws of pre-digital man? Nah

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Extraterritorial: Google tried - and failed - to argue that Canadian law shouldn't apply to it

A Canadian court has rejected Google's claim that it can't control its own search engine, and concluded that the web giant can in fact rein in its vast army of machines.

The case – Equustek Solutions Inc. v. Google Inc., 2015 BCCA 265 – was brought by network equipment manufacturer Equustek. It revolves around the de-listing of rogue websites from search results.

In 2011, Canadian equipment maker Equustek won a court case against a former distributor of its gear, Datalink, a tiny outfit whose founder, Equustek says, is currently the subject of an an arrest warrant. The company is no relation to the UK software integrator DataLink.

Datalink first rebadged Equustek’s kit, then produced a copy that it called the GW1000, according to Equustek. Despite losing a court case requiring it to stop selling the GW1000, Datalink has continued selling them under different names. It isn’t clear from where the company fulfils these orders, but it relies on web referrals to continue its operation. Which is where Google comes in.

In 2012 Google voluntarily de-listed 345 URLs listing Datalink’s gear at Equustek's request, which was followed by a court order. Google initially fought the order, then attempted to restrict it to Google.ca only – making the injunction worthless. Last year the court agreed that Google should delist the Datalink sites regardless of the territorial domain. The current case was a further appeal, joined by the film and music industry associations, and a Google-funded NGO, the EFF.

Google again argued that the court didn’t have any authority over Google – because the plaintiff is Canadian – and also that it was a “passive” operation.

An earlier judge had rejected this argument: search engines learn, they gather metadata, and so on.

In a nutshell, Justice Harvey Groberman said the earlier ruling was fair and proportionate:

The chambers judge carefully examined the evidence, and found that the injunction would not inconvenience Google in any material way, and that Google would not incur expense in complying with it. She also found that the granting of the injunction was the only practical way for the defendants’ websites to be made inaccessible.

Groberman said that the logic behind UK web-blocking, articulated by Justice Arnold in recent cases here, applied to Canadian injunctions too.

Canadian law on the authority to issue injunctions has paralleled that of England. In my view, Arnold J.’s conclusions with respect to the jurisdiction of English courts to grant injunctions are equally applicable to the Supreme Court of British Columbia.

Groberman said freedom of expression was important, but so were other rights, and the justice system needed to strike a sensible balance – a “balance of convenience”.

The importance of freedom of expression should not be underestimated. As the Canadian Civil Liberties Association has said in its factum: ‘A nation’s treatment of freedom of expression is a core part of its self-determination, rooted in the nation’s historical and social context, and the ways in which its constitutional values (whether written or unwritten), norms and legal system have evolved.’ For that reason, courts should be very cautious in making orders that might place limits on expression in another country. Where there is a realistic possibility that an order with extraterritorial effect may offend another state’s core values, the order should not be made.'

“In the case before us,” he continued, “there is no realistic assertion that the judge’s order will offend the sensibilities of any other nation. It has not been suggested that the order prohibiting the defendants from advertising wares that violate the intellectual property rights of the plaintiffs offends the core values of any nation. The order made against Google is a very limited ancillary order designed to ensure that the plaintiffs’ core rights are respected.”

The ruling may dismay believers in John Perry Barlow’s utopian concept of “cyberspace”, articulated at Davos 20 years ago. “You have no sovereignty here,” Barlow wrote. “Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are all based on matter, and there is no matter here.”

What the judge affirmed was that the rights and interests of powerful global corporations shouldn’t be able to nuke other rights, such as being able to conduct a lawful business, just because they say they're From The Internet. ®

Lawnote

The Ruling (pdf, 280kb)


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