Last week, the Supreme Court of Canada joined a growing list of courts and public bodies that seek to restrict freedom of expression and information on a worldwide scale.
The case in point is Google v. Equustek, in which Google challenged an interim order issued by the Supreme Court of British Columbia that required Google to de-list from its search results all the URLs of a website that sold counterfeit products in breach of Equustek’s intellectual property rights.
In an amicus curiae brief issued jointly with Human Rights Watch, Open Net (Korea), Software Freedom Law (Centre), and the Center for Technology and Society, ARTICLE 19 urged the Supreme Court to overrule the injunction. We argued that an attempt to protect intellectual property rights in Canada did not justify an order enlisting a third party to interfere with the right to freedom of expression of every information seeker in the world. In our view, the global de-listing order at issue was neither necessary nor proportionate and would set a dangerous precedent for other courts around the world to issue similar orders.
The Supreme Court upheld the order in a 7-2 decision. In this post we analyse the reasoning behind this ruling, which may very well have effects in similar cases all over the world.
What are the facts of the case?
Equustek is a Canadian company that designs and sells IT solutions for industrial automation equipment. In 2011, Equustek brought an action before the Canadian courts alleging that one of its former distributors was re-labelling its products, and selling them under its own brand.
The court of first instance found that Equustek’s claim was well-founded, and granted a provisional injunction ordering the offending company to refrain from selling or referring to Equustek products on its website.
After receiving this order, the respondent dropped from the judicial proceedings and effectively put itself out of reach of the Canadian courts. Since then, it has been selling Equustek products online, in contempt of repeated court orders to the contrary.
Where does Google step in?
In view of the injunctions issued by the Canadian courts, Google de-listed from its search results the specific respondent URL addresses that contained the objectionable material. However, Google’s action was subject to two major caveats.
First, Google did not de-list the entirety of the defendant’s website. As a result, every time a URL address was taken down, the respondent would upload the counterfeit products to a new, non-delisted URL address.
Secondly, the takedown was limited to search results displayed in the ‘google.ca’ website, which is the Google site accessed automatically by users with a Canadian IP address. The respondent site could still be accessed by users outside Canada, as well as by Canadians using alternative Google sites such as ‘google.com’.
Equustek argued that the only effective means to enforce the injunction was for the Canadian courts to order Google to de-index all respondent URL pages from the search results shown in all Google sites, even though these websites are overwhelmingly accessed by non-Canadian users. Canadian courts have granted this request.
What is the reasoning behind the Equustek ruling?
Equustek is grounded in two crucial points.
First, the court has asserted its authority to issue an order that effectively amounts to a restriction on access to information beyond the territory of Canada. Secondly, the court has failed to take international human rights law into account in making this order.
Why does Canada claim authority to restrict access to information on the Internet beyond its borders?
As a general rule, domestic courts only have jurisdiction over their national territory. However, there are some exceptions to this principle.
In Equustek, the Supreme Court relied heavily on one of these exceptions under common law – the Mareva injunction. In a nutshell, a Mareva injunction is a court order requiring a third party, e.g. a bank, to freeze the assets of a party to a dispute, in order to prevent it from taking them abroad. Mareva injunctions have extraterritorial reach when a court in country A orders e.g. a bank doing business in both country A and country B to freeze all assets of a party to a dispute, including assets located in country B. This order is given effect by the bank without the participation of country B’s courts. However, the bank can request a variation of the order if its implementation entails infringing country B’s laws.
In the court’s eyes, the global Google de-listing order was analogous to a Mareva order in that it required Google, a company with business in Canada, to restrict the respondent’s ability to disobey the court’s injunction out of Canada.
For the court, extending the Mareva logic to the online world was necessary on grounds of effectiveness. Given that the Internet is inherently borderless, a de-listing order would only be effective if it had global reach.
Why is the Supreme Court’s approach problematic?
In our view, a global Google de-listing order cannot be compared to a Mareva injunction.
First, a Mareva injunction restricts the rights of only one person, namely the party whose assets are frozen. In contrast, a global Google takedown order restricts the right of literally hundreds of millions of Internet users to seek and receive information. This is problematic in circumstances where different countries hold diverging views on what is lawful or unlawful speech on the Internet. The Equustek decision could be used as a precedent in future global Google de-listing orders concerning more controversial matters, such as hate speech or the right to be forgotten, not to mention potential politically oriented de-listing orders issued by authoritarian regimes.
Secondly, the person targeted by a Mareva injunction is part of the judicial proceeding where its rights have been restricted. It knows of its existence, and can challenge it. In contrast, most Internet users will not be aware of a Google de-listing order issued in another country, and will have no means of challenging it.
Lastly, Mareva injunction do not typically engage human rights in the way that global de-listing orders have an impact on the right to freedom of expression. It was for this reason that it was vital that the Supreme Court take into account international standards on human rights.
In sum, in our view a Mareva order is not a valid precedent for the Court to assert its authority to issue global search engine de-listing orders.
The court asserted its authority to issue a global takedown order. Did it take international human rights law into account?
It didn’t. The court analysed the global de-listing order using the usual standard for determining the validity of injunctions under Canadian law, which consists in the following three-part test: whether there is a serious issue to be tried; whether the harm suffered by the party seeking the injunction would be irreparable if the order was not granted; and whether the balance of convenience recommends adopting the injunction.
However, when balancing the interests of Equustek with the rights of those affected by the injunction, the court found that the order did not engage any freedom of expression concerns. Instead, it focused on the economic cost of implementing the takedown order, which was minimal. As a consequence, the court felt no need to include in its reasoning any reference to international human rights standards.
The Supreme Court’s reasoning is particularly disappointing given that over twenty press and freedom of expression organisations, including ARTICLE 19, intervened in the proceedings, arguing that worldwide de-listing orders have a negative impact on the right to seek and receive information on the Internet.
Why did the court brush off freedom of expression concerns?
The court placed on Google the burden of applying for a variation in the de-listing order in case it had evidence that it would be in conflict with a concrete foreign law, or that it would interfere with freedom of expression.
In its submission to the court, Google had alleged potential freedom of expression concerns, but it had not pointed to a concrete case of conflict with existing human rights laws or standards. As a consequence, its submission was brushed off as merely theoretical.
This is problematic for at least two reasons.
First, the court’s reasoning is grounded in the presumption that, unless Google alleges to the contrary, global de-listing orders do not conflict with foreign laws or interfere with freedom of expression. In our view, a presumption of non-interference is not warranted, as de-listing orders inevitably restrict freedom of access to information on the Internet.
Secondly, this criterion gives Google a preeminent role in determining the impact of a global takedown order on freedom of expression. Needless to say, as Google will pick and choose what laws and considerations are submitted to the court, its decisions may be influenced by business interests rather than human rights considerations.
What is the consequence of ignoring the international human rights law framework?
From an international human rights law perspective, a search engine de-listing order must comply with three requirements: it must have a proper legal basis, pursue a legitimate aim; and it must be necessary and proportionate in a democratic society.
While the standard Canadian injunction test merely seeks a balance between the concerned interests, international human rights law demands a specific focus on the protection of freedom of expression by requiring that courts adopt the least restrictive of all possible provisional measures.
In our view, if the Supreme Court had taken into account the principles of necessity and proportionality while applying the standard Canadian injunction test, the outcome of the case might have been different. As the dissent points out, there were alternative measures for protecting Equustek intellectual property, such as freezing the respondent’s assets in the countries where it operated. Given that these less restrictive alternatives were available, the global takedown order was a disproportionate restriction on freedom of expression.
What are the implications of Equustek?
Regardless of its legal merits, Equustek will reinforce the current trend of national bodies claiming for themselves the right to restrict freedom of access to information on the Internet on a worldwide scale.
When domestic courts decide on matters for which they find no precedent in their own jurisdiction, they tend to look for guidance in foreign judicial practice. Decisions such as Equustek will normalise claims of extraterritorial reach over the World Wide Web, and may give rise to further rulings in the same direction. Indeed, Justice Abella cited several cases from the French, German and EU judicial courts in support of its conclusions.
As the Electronic Freedom Frontier, Daphne Keller and Michael Geist point out, this logic may very well be used by domestic authorities in autocratic countries pursuing aims, which are far more controversial than upholding intellectual property. Decisions restricting access to Internet content on the basis of national security, public order or public morals will find an interesting, if unwilling, precedent in Equustek.
Two practical results might follow. First, we may soon see a conflict between two opposing decisions by domestic bodies claiming overlapping jurisdiction over the same Internet content. Secondly, as several commentators have mentioned, Equustek will encourage forum-shopping, as multinational companies will bring their cases to jurisdictions that are friendly to their interests, in order to impose their outcome to the rest of the world.
Why does this give more power to Google?
Although domestic courts have claimed extraterritorial jurisdiction in the past, they have always been modest in exercising it, as they are aware that enforcing domestic decisions abroad is difficult and costly, and can bring them in conflict with other states.
The existence of an operator like Google is a technological solution to this problem. If a Canadian court orders Google to de-list a site, it can restrict access to information on a global scale in a swift and costless manner. Hence the temptation to issue an increasing number of global Google de-listing orders.
The crucial fact is that the institution that actually has the capacity to act extraterritorially is Google, not the Canadian court. If Google refuses to cooperate with domestic institutions, national courts such as the Supreme Court of Canada will find themselves again just as limited in their capacity to enforce extraterritorial orders as they did in the past.
As Michael Geist points out, if global de-listing orders step into more controversial territory, it will be left for Google to decide whether to enforce them or not, factoring in considerations of legality, principle, public relations and business interest. Needless to say, this sort of decision should not be left to private actors, as decision-making in the private sphere will be marked by a lack of transparency, accountability, and concern for the public interest.
Is Equustek the last word of the Canadian Supreme Court?
It need not be. While the Supreme Court failed to take international human rights standards into account, it did not rule out that future global de-listing orders might have an impact on freedom of expression that should be taken into consideration.
Furthermore, in their strong dissent Justices Côté and Rowe advocated for judicial restraint on extraterritorial injunctions, and emphasized the need to seek alternatives to global Google takedown orders.
As a consequence, Equustek should not be read as a precedent preventing Canadian courts from pursuing an international human rights law analysis of nec
ssity and proportionality in future cases involving global Google de-listing requests. In fact, the Supreme Court itself may very well reach a different decision in cases where the freedom of expression interests at stake are, in its view, of higher significance.
by Adrià Cots Fernández, Law & Policy Intern