Courts in the Canadian province of British Columbia can now force Google to block search results from appearing on any of the search engine’s global sites, after a ruling this week—and privacy experts are worried that the decision could, at its worst, be leveraged by courts in other jurisdictions to censor free speech.
Last year, a BC court ruled that it could force Google to block search results from the site worldwide if the linked sites violate Canadian law. But the question remained: did the court actually have the legal authority in Canada to force Google, a US company, to censor searches?
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Google filed an appeal which argued that since the company doesn’t have an office or any data centers in the province, the court should at least limit its injunction to the Canada-specific Google.ca. Well, the court just dismissed Google’s appeal in a legal first that could open the floodgates to more takedown requests at the behest of Canadian courts.
“It looks like there was a pretty clear bad actor, but there might be cases where there isn’t,” Tamir Israel, a lawyer at the Canadian Internet Policy and Public Interest Clinic, told me in an interview. “What we’ve set up now is a new type of order in Canada that will inevitably be used in a range of other contexts, just because it’s so convenient.”
“[It] will inevitably be used in a range of other contexts, just because it’s so convenient”
Israel told me that this new ability for BC courts—and potentially those in other jurisdictions—could make it difficult for future companies targeted by these kinds of takedown requests to defend themselves, especially if they operate outside of Canada. It might be too expensive for foreign defendants to come to Canada, or they might not have the legal experience necessary to defend themselves in jurisdictions outside of their own.
In this particular case, the ruling was meant to settle a dispute between Equustek Solutions, a Canadian tech company, and one Morgan Jack. Equustek alleged that Jack, who was once a distributor for Equustek, was manufacturing rip-offs of their products and selling them. The court ruled in Equustek’s favour.
Still, Jack continued to sell his products online, so the court granted an injunction ordering Google—which was not otherwise involved in the case at all—to block search results linking to his sites, and not just in Canada, but across the world.
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According to the judge, because Google indexes sites based in the province, and thus carries out “key parts” of its business there, the court has legal authority to request that search results be removed from Google.
The judge also ruled that any proposed takedown shouldn’t “offend the sensibilities of any other nation.” Basically, shutting down a shady company shouldn’t piss anybody off.
But “that’s not really the issue,” said Cara Zwibel, director of the fundamental freedoms program for the Canadian Civil Liberties Association, which stepped in as a third party intervener in the case. “That’s the wrong language. It’s not about offending sensibilities, it’s about violating their laws and restricting constitutional rights. That does downplay things, and it’s a bit concerning.”
Such a broad approach in Canada could be dangerous
According to Zwibel, the ruling is “novel” in Canada. The court’s closest point of reference for claiming legal jurisdiction over Google’s activities was that Canadian court have, in the past, issued injunctions to freeze financial assets outside of Canada.
Forcing Google to take down search results is already possible in other places like the European Union, where “right to be forgotten” legislation lets people ask that links containing information about them be blocked in Google search results. However, this only applies to European search engines. An even broader approach in Canada could be dangerous.
“We would be rightly concerned if a court in Russia decided that there were websites that promote the LGBTQ lifestyle that had to be deleted for some reason from worldwide search results, and it’s that kind of reason that we contemplate when we get involved in a case like this,” Zwibel said.
For Google’s part, a spokesperson told me in an email that the company has “received the court’s judgment and are reviewing it carefully.”
