Google Fights Against Canada’s Order to Change Global Search Results

In June, Canada’s Supreme Court came down on Google—hard. It ruled that the tech giant must take down certain Google search results for pirated products. And not just in Canada, but globally. Now, Google is going south of the Canadian border to push back on this landmark court ruling. The tech giant filed an injunction Monday with the US District Court for Northern California, arguing that globally removing the search results violates US law, and thus Google should not be forced to comply with the Canadian ruling.

Because the case had already made its way to the highest court in Canada, Google should have not been able to fight the ruling. But Google is hoping to find a loophole on American soil by arguing this violates the First Amendment.

“We’re taking this court action to defend the legal principle that one country shouldn’t be able to decide what information people in other countries can access online,” says David Price, senior product counsel at Google. “Undermining this core principle inevitably leads to a world where internet users are subject to the most restrictive content limitations from every country.”

Google’s resistance to the ruling comes at a time when court orders to remove content worldwide are surging. Last month Germany passed a law ordering social media companies that operate in the country to delete hate speech within 24 hours of it being posted or face fines of up to $57 million. In May, an Austrian court ruled that Facebook must take down hateful posts directed at the country’s Green party leader. And the European Union’s top court is poised to decide whether the bloc’s “right to be forgotten” laws should extend beyond Europe’s borders. Around the world, there are dozens more cases around global takedown requests that are pending.

The problem, according to internet law experts, is that allowing country-specific social media laws to stand worldwide could set a troubling precedent. One country’s idea of acceptable speech may be another’s idea of hate speech, for instance. Countries with sharply diverging definitions of what is allowable online speech could leave us with a fractured “splinternet,” where what you see online depends on what is OK, culturally, wherever you happen to be accessing the internet. And that could threaten the global internet itself.

Tech companies—including Google, with its latest legal maneuvering—aren’t going down without a fight. But staunch resistance won’t solve its problems, says Vivek Krishnamurthy, assistant director of Harvard Law School’s Cyberlaw Clinic, who specializes in international internet governance. “Yes, Google may end up getting a favorable decision from a US court. But it won’t stop the plaintiff from seeking enforcement in Canada,” says Krishnamurthy. “And Google faces legal and economic risks if they don’t comply with Canadian law. It adds up to a really hard business decision for the company.”

Easy Peasy Piracy

For the uninitiated: last month, a landmark decision was reached in Google v. Equustek, a case in which a British Columbia-based technology company called Equustek accused Datalink Technology Gateways, a distributor, of selling what was essentially a repackaged Equustek product. Datalink first denied any wrongdoing, then fled the country, never appearing in court—and it continued to do business outside of Canada.

As the legal saga unfolded, Equustek asked Google to take down search results for Datalink websites, which Google voluntarily did—but only on Google.ca, the country-specific version of the search engine. But Equustek appealed to higher courts and continued to pursue a global takedown of search results. The company scored big when the Supreme Court of Canada rejected Google’s argument that freedom of expression should have prevented Google from having to comply with the global order. “We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods,” the court wrote in its ruling. “The problem, in this case, is occurring online and globally. The internet has no borders; its natural habitat is global.”

It’s tempting to view this as a cut-and-dry case in which the problem—piracy—is a clear enough crime that a global takedown of search results is deserved. But bad cases make for bad laws, Krishnamurthy argues. “It was easy for the Canadian court to say, ‘Hey, piracy! Of course take it down,’ over something else,” he says. “But you have to decide the case as it’s given to you.” Still, the ruling sets a bad precedent for other actors with other rationales trying to get Google to wipe search results globally.

A Tough Business Decision

Krishnamurthy says he’s reminded of a case that goes back to 2000, when a French nonprofit organization asked Yahoo to take down content and materials that promoted Nazism. The French court sided with the group, but Yahoo filed a follow-up complaint with the US District Court for Northern California, arguing that if the French judgment were to be enforced against the company, it would violate the US’s First Amendment. (Sound familiar?)

Yahoo ended up winning an early victory in court, but lost on appeal. It’s the same problem in the Equustek v. Google case, Krishnamurthy says: the burden is on Google to demonstrate to a US court that a Canadian actor will bring an enforcement action in the US. “Unless they can show that, a US court is likely to say the situation is hypothetical,” Krishnamurthy says. Still, if Google insisted on keeping the objectionable content available online, it doesn’t rid the company of the problem, he points out. “That doesn’t stop Equustek from going to Canadian court and saying, ‘Google didn’t comply, it is now in contempt. Seize its assets, throw its executives in jail,’” Krishnamurthy says. “There are any number of enforceable actions on the Canadian side of the border.” Looking at precedent, Krishnamurthy says it’s a risk Google likely won’t want to take.

However there is nothing stopping Google from leaving the search results as is; it’s a private actor and can do whatever it wants under the First Amendment. But take the Yahoo case. The company ended up voluntarily complying with the takedown request on a global policy. “It ultimately decided that it was bad for business for the platform to keep selling the Nazi stuff,” says Krishnamurthy. Removing the results might be the easier option for Google. “The First Amendment is a shield, not a sword,” says Krishnamurthy.

So why make the noise about filing the injunction in the first place? “It’s the thin edge of the wedge problem,” says Krishnamurthy. Google wants to push back for principled reasons, for business reasons, and to signal to others that it won’t bend over and take potentially worse decisions—like the one coming up in the EU’s top court enforcing its “right to be forgotten” laws globally. But most importantly, Google likely won’t want to turn itself into a less useful product for people. “There’s a bit of enlightened self-interest here,” says Krishnamurthy. As more and more countries make more demands of Google and mess with its results, the quality of the search tool itself declines.

Yet Google faces legal and economic risks if it doesn’t comply with Canadian law. Whatever the tech giant ultimately decides to do, the company is contending with a very difficult business decision.