It could be just a matter of time before a search on Google fails to turn up relevant and legal information after the Supreme Court of Canada opened the door to foreign courts applying their laws in other countries, said one internet law expert following Wednesday’s decision from the court.
Imagine sitting in your Canadian home, searching Google for a Taiwanese news source or tourist spot, but not being able to because the Chinese government ordered all Taiwanese sites off the internet.
Or, imagine using Google to look for the address of a Canadian gay bar or a restaurant review in a local gay and lesbian magazine, but nothing showing up because the Iranian government ordered gay sites wiped from the search engine.
Those are two potential scenarios Michael Geist, a University of Ottawa professor and Canada research chair holder in internet and e-commerce law, suggested could happen in the wake the Supreme Court’s long-awaited decision in the Google v. Equustek Solutions case.
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Wednesday morning, the court upheld a ruling ordering Google to wipe all references, worldwide, to Datalink Technologies Gateways, a company selling counterfeit goods made using stolen intellectual property.
Burnaby, B.C.-based Equustek wanted to stop Datalink from selling the hardware through various websites and turned to Google for help.
Initially, Google removed more than 300 web pages from search results on Google.ca, but more kept popping up, so Equustek sought – and won – the broader injunction that ordered Google to impose a worldwide ban.
The case landed in the Supreme Court docket when Google appealed the B.C. court’s 2015 order for the internet giant to stop indexing or referencing websites associated with Datalink. Google argued Canadian courts don’t have the legal authority to impose such injunctions.
The high court’s 7-2 decision today recognizes that Canadian courts have jurisdiction to make sweeping orders to block access to content on the internet beyond Canada’s borders.
It also paves the way for a scenario where intermediaries like Google wield a considerable amount of power, Geist said in an interview Wednesday.
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As noted in the Supreme Court’s decision, Google has already erased reference sites in the past, including to some copyrighted material and child pornography.
Though each case of suppression might seem just in its own right, it’s the cumulative effect of all similar decisions that can breed something of concern, Geist said.
“If all courts around the world are invited to do this, Google can start picking and choosing which laws to apply,” he said.
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“Ultimately, that may mean a Canadian’s ability to reach specific content online can be limited … Content that’s perfectly legal in Canada can become almost impossible to reach.”
How does this happen?
The highest court in Canada, by telling Google what to do with its search engine inside and outside of Canada, is imposing Canadian law in other countries.
In so doing, the Supreme Court opened the door for high courts in other countries to do the same and, in effect, impose their laws to Canadian sites, Geist explained.
“You end up with courts and governments making choices for other countries on what they can and can’t access,” he said. “Canadian laws could end up being overwritten by those of other countries.”
On the other hand, Toronto lawyer Barry Sookman, who represented the interveners in the case, described the court’s decision as “practical” and a recognition of the need for courts to wield a broad power to make orders against people or entities facilitating online illegal activity – which in this case entailed selling goods made by misappropriated trade secrets.
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“It’s extremely unlikely that any other country would be likely to take umbrage or offence at an order that essentially prohibited the sale of infringing goods in other countries,” Sookman said while speaking to reporters in the Supreme Court building on Wednesday.
“This will help any person that is having their rights violated on the internet … it will provide another remedy where the person is suffering essentially irreparable harm and can’t get a remedy directly any other way.”
Those people could include those holding copyrights or trademarks, or someone whose privacy rights are being infringed online, the lawyer said.
“I think every rights holder will be taking a very close look at this case,” Sookman said.
With a file from The Canadian Press