Canadian Court Believes It Has The Right To Censor The Global Internet; Not At All Concerned With Consequences

Legal Issues

from the dangerous-ruling dept

In the wake of the awful European “right to be forgotten” ruling, it appears that a Canadian court is looking to get in on the over-aggressive censorship of the internet game. As highlighted by Michael Geist, the court in British Columbia has basically ruled that it can order Google to delete links to an entire website worldwide. The ruling in the Equustek Solutions Inc. v. Jack case is quite troubling on a variety of different levels, all of which should be called out for the problems and consequences (intended or otherwise) they are likely to create. First, in many ways, this ruling goes beyond the European right to be forgotten ruling, which at least limited the ruling to Europe. Not so with this court’s ruling, which basically argues that because Google operates worldwide, it is automatically amenable to any regulation around the globe (even though Google isn’t even one of the parties in the lawsuit!).

This is, frankly, a concern that we’ve been discussing for well over a decade — the question of “jurisdiction” for online activities. As we’ve noted, it’s somewhat crazy to argue that because you do something online, and that’s the accessible anywhere, that any laws from any countries apply worldwide. That’s a recipe for killing the internet, because it means that the most draconian laws automatically prevail. The stricter the regulations and the greater the censorship always win out under that scenario, since not obeying the most draconian rules automatically subjects you to liability. Such a ruling would have immense (and immensely troubling) implications.

And yet, that’s exactly what this BC court decides to claim. It almost entirely shrugs off the consequences, instead blaming them on Google for having the temerity to operate globally.

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.

The court seems confused about two things. One is the decision to open up global offices and to be subject to the jurisdiction of various countries where you have operations, and be subject to those laws for the users within that country. That already raises some questions. But, the court conflates the idea that a company may be subject to a local jurisdiction for the parts of the company operating in that jurisdiction, with the fact that an online service is available around the globe. The second, is the idea that because a ruling applies to the Canadian jurisdiction, it’s okay to enforce it around the globe from Canada. Google had already removed the links in question on the Google.ca search engine, but the court is saying it needs to go much, much further.

Think, for just a second, about the consequences of such a decision. As Michael Geist notes, it’s not hard to see where this gets very troubling very fast:

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.

Or, just go back to the European right to be forgotten ruling. Under this rationale, Europeans might seek to have such content deleted globally. Or how about China? We just reported on how successfully China has more or less deleted all references to Tiananman Square online within China. Now imagine that it had the power to do that globally? For years we’ve discussed libel tourism in which individuals and companies pick the “best” jurisdiction to sue someone for libel, using the claims that because it’s on the internet, the statements are available in that country (even if neither the speaker, nor the subject of the speech) are located in that country. Imagine what the internet looks like when such rulings can be determined to apply globally.

It’s not just that it creates a heckler’s veto for the internet. It’s much, much worse. It means that the most draconian, most repressive, most anti-free speech rules automatically apply to the entire internet, because one could just seek out the most extreme jurisdiction to bring cases, and then seek to apply them globally just because the content appears “online.” This is a disastrous ruling for the internet, for free speech and for freedom in general. Hopefully, the case is appealed and overturned.

Filed Under: canada, censorship, free speech, jurisdiction, libel tourism, search results
Companies: equustek solutions, google