JURISDICTION ON INTERNET AND ITS IMPLICATION ON FREE SPEECH (Google v. Equustek)

Recently, the Canadian Supreme Court in the case of Google v. Equustek, upheld the validity of a temporary injunction, which has a garnered attention from the global community. The peculiarity of the order is that the injunction requires Google to remove certain search results worldwide, thereby extending the Court’s jurisdiction to global proportions.

The plaintiffs (‘Equustek’) claimed that while acting as their distributor, the defendants began to counterfeit and sell the plaintiffs’ products in their own name. They sued the defendants for trademark infringement and misappropriation of trade secrets to which the defendants filed a defence of claim but soon abandoned the proceedings and vanished, yet continued to sell the impugned products on its websites. The plaintiffs approached the High Court to order Google to de-link all the defendants’ websites from its search results. The High Court granted the order but its implementation was ineffective because of two reasons. One, Google only removes specific web pages and URLs according to its internal policy. Whenever one webpage was removed, the defendants just moved the content to another webpage on their website. Secondly, Google de-linked web pages on search results only on the Google.ca domain. The impugned products were available on search results in the rest of the Google domains across the world.

The plaintiffs moved the High Court again for a temporary injunction against Google directing it to remove the defendants’ websites in all its domains which was granted and subsequently upheld by the Supreme Court. While the dissent points out several shortcomings of the judgment including the effectively permanent nature of the temporary injunction, a burdensome and ineffective order on a non-party, and the brief dismissal of alternative solutions available to the problem, this blog would focus on the lack of judicial restraint of the Court which has not fully considered the consequences of the judgment on online freedom of speech.

ExpertSpeak_Arindrajit_Basu
Accessed from here.

History of global injunctions

Global injunctions, even global injunctions against Google, aren’t unheard of. The Equustek case itself cites cases where the courts have granted injunctions enjoining the person’s conduct anywhere in the world  These include cases like Mosley v. Google Inc. where the plaintiff was granted injunction against Google directing it to remove private sexual information published about the plaintiff from its domains world-wide and the case of. McKeogh v. Doe where the injunction was for removal of defamatory material about the plaintiff. These cases rely on the Court of Justice of the European Union’s (CJEU) landmark judgment which ruled that search engine operators like Google are responsible for the processing of the personal information that may have been published by third parties. It allows parties to ask the search engine for removal of defamatory or irrelevant information about themselves under his/her Right to be Forgotten.[iii]

The difference between this judgment and previous rulings on global injunctions is that in this case, the issue involved is not the freezing of assets worldwide or the removal of defamatory personal information. The ruling in this case blocks search results outside the court’s jurisdiction based on trademark infringement issues and turns Google into the Internet Police.

Implication on free speech and expression

Internet is a global instrument for speech and any order aimed at regulating it will have amplified effect across borders especially on the rights of the internet users. The injunction order passed by the Supreme Court of Canada has the potential to adversely impact the freedom of speech and expression of internet users not only in Canada but across the globe.  Questions regarding the impact of this injunction order on speech and expression in other jurisdictions were raised in this case by Google. However, the Court brushed aside the issue of censorship stating that the order does not in anyway concern freedom of speech and expression as it is only an issue of trademark infringement. The Court further said that even if there was a question of freedom of speech and expression involved, it is outweighed by the irreparable harm being caused to Equustek by not granting the injunction.

Google also raised the argument that the enforcement of this order in other jurisdictions might conflict with the law in force in that jurisdiction. The Court negated this argument by simply stating that the arguments are theoretical and the onus is on Google to prove that the enforcement of the injunction order would conflict with the law of any country. Therefore, as observed by Dephane Keller, the Court only looked it from the point of view of conflict of laws and not freedom of speech and expression.

The Court equated the argument of the individual freedom of speech and expression of another country with that to international comity stating that the injunction would not offend the sensibilities of any country. However, it is important to understand that there is a difference between the sensibilities of a State and the human rights of the users of Internet. Merely looking at these rights from the lenses of international comity and national sensibilities would be endangering the rights of the internet users.[iv]

As Keller argues, the it is not the obligation of the intermediaries like Google who are private players to protect free speech and expression of the individuals, rather it is the obligation of the government in different countries to protect this right. The better question to ask would have been whether while enforcing the injunction order, the courts in other jurisdictions would be violating the law in their respective countries.

In addition to this, it has been argued by commentators like Michael Geist that the judgment sets a bad example for other countries and would lead to more countries issuing global takedown orders and enable them to impose their speech-restricting laws on internet. He has given the example of Chinese courts ordering a takedown of Taiwanese sites and Iranian courts ordering search engines to remove sites related to homosexual rights awareness to highlight the extreme consequences of the judgment. These examples can be countered by pointing out that the likelihood of China and Iran passing such an order already exists and would continue irrespective the order of the Supreme Court of Canada.  However, the argument remains that the ruling would have implications on how data is accessed globally and what jurisdiction does a national court have over the online access of an individual.

Google-V-Equustek-Solutions-Business-Internet
Accessed from here.

Conclusion

By passing this order, the Canadian Court has set an alarming trend in the exercise of jurisdiction on internet by the domestic courts and on how the right of free speech and expression of internet users is conceived in the future. The Court has paved the way for exercising extraterritorial jurisdiction on internet without giving any heed to the implication on freedom of speech and expression of the internet users across the globe and ignoring the concern of conflict of laws and international comity. If all the countries start claiming jurisdiction over the internet, the internet will end up being over-regulated by conflicting laws. This case has essentially highlighted the need for an international discussion on the jurisdiction of national laws over global internet access if we are to prevent censorship of our freedom of speech.

[This post has been written by Medha Haradhan and Swarnima Mukherjee, from the 4th and 3rd years at WBNUJS, Kolkata respectively and edited by Shardha Rajam, a 4th year law student at WBNUJS, Kolkata].

References:

[i]Impulsora Turistica de Occidente, S.A. de C.V. v. Transat Tours Canada Inc., [2007] 1 S.C.R. 867

[ii]Mooney v. Orr (1994), 98 B.C.L.R. (2d) 318 (S.C.)

[iii]Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, (2014) [CJEU] C-131/12.

[iv]Graham Smith, ‘Worldwide search de-indexing orders: Google v. Equustek’ (Inforrm’s Blog, 26 July 2017) <https://inforrm.wordpress.com/2017/07/26/worldwide-search-de-indexing-orders-google-v-equustek-graham-smith/ > accessed 14 September 2017.

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