National Courts and the Future of the Internet: Google Inc. v. Equustek Solutions Inc.

Of the issues facing Internet services and Internet users, one of the most intractable is that of the impact of national courts on the operations of Internet services such as Google, Facebook, and Bing.
For the providers of Internet services, compliance with the orders of national courts represents both an economic compliance cost, as well as a threat to the integrity of their platforms as neutral presenters of information provided by third parties.
For Internet users (including those who post information on the Internet), compliance by service providers with such orders may represent the loss of valuable information, the suppression of dissenting opinions, or a prejudgment of matters of taste and morality.
There are a number of famous instances where courts have imposed obligations on service providers: the Spanish courts created a “right to be forgotten”; the issue of the obligation of Google to comply with French privacy law is being litigated; and many nations are trying to impose obligations on service providers respecting terrorism, cyberbullying, and fake news.
Now the Canadian courts have become enmeshed in these issues.
On June 28, the Supreme Court of Canada (2017 SCC 34) made one of its most closely watched and controversial decisions in recent years. The Court upheld a lower court ruling requiring that Google de-index all the webpages of Datalink on a world-wide basis.
Datalink had been the distributor of Equustek goods, but it was alleged to have, first, relabelled Equustek goods as its own and, then, used confidential information obtained from Equustek to manufacture goods competing with those of Equustek. Equustek sued Datalink, which, after filing a defence, left the jurisdiction. Datalink has continued to sell its competing goods over the Internet. It was uncontested that Google searches were the primary means by which both Canadian domestic and foreign customers reached the Datalink pages.
A series of interlocutory orders were issued against Datalink. Datalink defied them and continued to carry on selling the contested goods. An order to de-index Datalink webpages was limited to Google.ca, and proved ineffective, as customers could use any other Google site (Google.com, Google.de, etc.) to reach Datalink pages, and Datalink simply moved the content from deindexed pages to new pages within its website (a process Equustek characterized as a form of legal whack-a-mole). On further application by Equustek, the lower court issued an interlocutory order requiring Google to deindex all pages of Datalink on a world-wide basis.
Google appealed to the British Columbia Court of Appeal, which sustained the interlocutory order.
Google further appealed to the Supreme Court of Canada. The Supreme Court of Canada rejected the appeal and upheld the interlocutory order.
The principal concerns have been expressed by supporters of an open Internet. Their comments have largely focussed on the potential of the decision to set a precedent that might be used to suppress free speech on the Internet. Most often, the comments have tended to be along the lines of: “what if the Russian or Iranian courts were to require the deindexing of dissident websites or comments?”
It is impossible to dismiss these concerns: the open Internet is under threat – but then – it always was. China has erected its Great Cyber Wall to prevent domestic access to the wider Internet. Various regimes have blocked social media services in their countries, or used them to target dissenters.
The issue for the courts is not whether by issuing an order having extraterritorial effect they encourage less scrupulous judicial systems to do the same: the issue is whether a court can deny itself the ability to do justice to the parties before it. If, as in Equustek, the only remedy that is both lawful and effective is an order having a deliberate extraterritorial effect, then the court has no choice but to exercise its powers in that manner. To refuse to exercise its powers to provide real relief to an injured party would be to abdicate its responsibility to the parties before it, and to the system of justice that it represents.
That other courts in other lands may issue orders that would have the effect of suppressing free speech is incontestable. That is a real issue, and one for which effective protections must be built. Unfortunately, it is unlikely that, had the Supreme Court of Canada allowed the appeal and suppressed the interlocutory injunction, it would have influenced to any degree the ability or willingness of other national courts to issue orders that will have the effect of suppressing free expression rights.
Google, Facebook and the major Internet companies that operate on a world-wide basis will, indeed, have to face some hard choices in the foreseeable future. In part, the dilemma arises as a result of their success and ubiquity. A mandatory order against Google or Facebook is likely to be effective simply because of their universal reach and accumulated data. This is a natural outgrowth of the success and scope of the giant Internet corporations and their global strategies. The fact is that, increasingly, national courts will be unable to give effect to national laws without requiring the compliance of global Internet services.
There exists no supra-national law that applies to the Internet. There is no supra-national court to which Google or Facebook can appeal when a national court makes an extraterritorial order that would actually violate the principles of fundamental justice. The world needs a mechanism by which extraterritorial orders issued by national courts can be further adjudicated. This cannot be done outside of international public law. It is difficult to believe that the road to international agreement will be a smooth one.

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