One of the chronic issues of internet law is extraterritoriality: When can a court in one country control content elsewhere? Last week, the Canadian Supreme Court considerably increased the risk of a major clash over this issue. In a recent decision (Google Inc. v. Equustek Solutions Inc) (0), the court held that a Canadian trial court acted properly in ordering Google to hide certain content from users anywhere in the world (1). Unless this principle is promptly restrained, it is liable to do a great deal of mischief.
The content in question is of no particular social value. In previous litigation, Equustek had demonstrated to the satisfaction of a Canadian trial court that a competitor — Datalink Technologies — had stolen their intellectual property and illegally marketed a copycat product. Equustek requested, and the trial court granted, an order that Google hides all webpages belonging to Datalink from all users everywhere. In the court’s view, the fact that Google sells advertising to customers in British Columbia was enough to give the provincial courts their jurisdiction to regulate search content worldwide.
The problem with the ruling
Google and a platoon of amici curiae object that this ruling will have significant negative consequences on free expression. The Canadian Supreme Court majority considers this point in paragraphs 48 – 50 of its decision — and misses the point. The court takes laborious notice of the fact that advertising for an illegal business is not a protected speech and that Google under other circumstances removes webpages from its search engine.
None of this is to the point. The key issue is not the content covered by this particular injunction — it is the jurisdictional question. Canada is now on record as saying that a court may regulate content anywhere a company sells advertising. This is such a reckless policy that it is hard to understand how the court failed to think it through. But once we concede that Canadian courts can regulate search engine results in Turkey, it is hard to explain why a Turkish court shouldn’t have the reciprocal right. And this is no hypothetical — a Turkish court has indeed ordered Twitter (2) to remove a user (AEI scholar Michael Rubin) within the United States for his criticism of Erdogan. Once the jurisdictional question is decided, it is no use raising free speech as an issue. Other countries do not have our free speech norms, nor Canada’s. Once Canada concedes that foreign courts have the right to regulate Canadian search results, they are on the internet censorship train, and there is no egress before the end of the line.
At the trial court, Google noted that it does not actually have an office in British Columbia. The court acknowledged that “traditionally, courts have not granted injunctive relief against defendants who reside outside the jurisdiction” [paragraph 91]. However, the court decided that in the interest of convenience for the plaintiff, it would issue an injunction anyway — backed by the unspecified threat of creative enforcement penalties, for example, refusing to allow Google to use the courts of British Columbia for other unrelated tort or contract disputes.
This again is really quite an alarming precedent when extended worldwide. We do not want courts throughout the world to exercise their creativity in finding ways to compel foreign companies to alter their conduct in foreign countries. It is worth noting that while Google does not have offices in British Columbia, it does have offices in Moscow, Istanbul, and Beijing (3). If global internet regulation by trial courts is going to happen, Canada may have to wait in line behind several other countries that have more effective ways of bringing Google to heel.
How Google and the US could respond
It would be poetic justice for Google to grant all courts and governments worldwide the right to supervise search results seen in Canada, but not elsewhere. Perhaps the courts in Russia would like to enjoin criticism of Putin in Canada — there is no obvious jurisdictional bar recognized by the Canadian government. Perhaps China’s content rules should apply to expatriates in Vancouver. Perhaps some court in France would like to order all French-language content globally to conform to Académie française guidelines. The Canadian Supreme Court has failed to even hint at a generally applicable principle to bar these sorts of orders.
The US government might also intervene. We have an administration that, while not particularly pro-tech, is particularly bellicose on trade issues. The right of American companies to serve whatever content they like in the United States without prejudice to their legal rights in Canadian courts seems like a reasonable issue to raise in trade negotiations.
In all likelihood, nothing dramatic will happen this time, however. Based on my personal testing, Google appears to have complied with the order — Bing finds many Datalink websites that Google does not return. This compliance suggests that other courts and governments will be emboldened to likewise issue orders with worldwide applicability to non-resident companies. Of course, not every company will obey every order. But we are sliding towards a world in governments are increasingly brazen in regulating content shared by foreigners on foreign platforms, and in which companies comply or not, based on what pressure can be brought to bear. This is going to be a significant burden on the technology industry and a greater one on the world at large.