Can one country tell the world what it can and can’t see online?

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December 9, 2016 by Paul Dughi

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That’s what’s being examined by Canada’s Supreme Court as it looks at a court decision that ordered the censorship of content on Google even outside the country’s borders. Google appealed, as you can expect, and the SupCo is hearing the case now.

It stems from a Canadian company (Equustek) that found what it deemed an illegal knock-off of one of its products being sold on-line. They took the offending company to court and the court took Equuestek’s side. The company, Datalink, was ordered to stop selling the products under its brand name. Shortly thereafter, Datalink shifted to an online only company and it caused problems for authorities to enforce the ruling.

capture

Arrest Warrant

Although they did issue an arrest warrant for one of the company’s principals.

Equuestek then asked Google for help and Google complied, voluntarily taking down several hundred URL links to the offending site on Google Canada. But the company moved its product sites to different URLs, including those outside Google Canada and the links lived on.

But this is where it gets interesting. Equustek went back to court, seeking a worldwide ban on listings for the company. In 2015, a British Columbia court ordered google to remove all search results worldwide.

Wait a minute. What? How can one country tell the entire world what they can see on-line? 

Now you may not care that a company that gets caught breaking trademark law gets yanked, but what precedent does it set? Maybe next time, it’s the government of North Korea trying to decide what you get to see or link to.

“It’s a worrisome trend, where we see individual countries trying to regulate the internet worldwide…And of course the consequences of that would mean that even countries like Russia and China could do the same thing and that will really affect the content available on the internet.” — Gregg Leslie, Reporters Committee for Freedom of the Press in The Guardian

Google stated the obvious in its filings: “one country should not have the right to impose its rules on others.” They also appealed on freedom of speech issues. Google appealed the case… and lost. The judgment in the three court panel decided that “The plaintiffs have established, in my view, that an order limited to the google.ca search site would not be effective.”

From the panels’ ruling:

The main issue before the Court was an appeal presented by Google, Inc. regarding an interlocutory injunction that prohibits it from including specific websites in results delivered by its search engines. Google is not a party to the litigation at hand and argued more importantly that the Supreme Court of British Columbia did not have jurisdiction on the matter. Google also contended that the “injunction should not have been granted because of its effect on freedom of speech.”

The Court affirmed the Chamber’s judge determination that Google does indeed fall in British Columbia’s jurisdiction as it carries key parts of its business in the Province. (para. 54). More importantly, Google asserted that the order made by the trial judge could have extraterritorial effect and undermine the right to freedom of expression. (para. 91). Regarding this extraterritorial effect on freedom of expression, the Court rejected this notion and determined that the order would not offend any other nation pursuant to the principal of comity. The Court also dismissed Google’s contention that the order should have only been made to websites under Canadian domain and not worldwide. The court also stated that there had been no evidence that the defendant’s websites were used to exercise freedom of expression.

So, on to Canada’s highest court. The world is watching.

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