Richard OwensA case before the Supreme Court of Canada will test how far search engine giant Google can go in flouting the law, writes Richard Owens for Inside Policy.

The Supreme Court heard arguments earlier this month from Google that it should not have to comply with a BC court that issued an injunction against Google for returning results for a company that was stealing another company's intellectual property.

By Richard Owens, Dec. 20, 2016

Is Google mighty enough to be above the law?  In Google Inc. v. Equustek Solutions, this seems to be its argument.  In the case, Equustek obtained an order in a BC court to keep a competitor, Datalink, from copying Equustek’s intellectual property, selling products containing it and advertising them over the Internet.  Datalink failed to comply, and so the court also issued an injunction against Google from returning results for the many web sites Datalink used to promote infringing wares.  Google has appealed the injunction to the Supreme Court of Canada, which has reserved its decision.

Google says that if it must comply with the court order it should be for Google.ca only.  This is a token gesture on Google’s part.  It provides no remedy for Equustek, as the Datalink domains can simply be searched from Google.com. The response is a nod to the Canadian residence of the court, but of course the .ca domain does not conform to the jurisdiction of the court, either.  It is a position bound to leave courts and plaintiffs alike unsatisfied, and to beg a wider order.

If Google shirks reasonable legal requirements it will only further the image of the Internet as lawless

Google might argue that it is an innocent bystander.  It doesn’t make the offending sites, it merely, and automatically, indexes them.  Enforcement should be against the sites and servers, not the indexer.  However, it is impractical for aggrieved parties to seek enforcement in the jurisdictions in which such actors hide, assuming it were even possible to find them. Google is better off acknowledging the responsibility this entails to avoid indexing illegal sites on request, lest Google be more deeply implicated in the enterprise of purveying illegal goods.  This is particularly so as Google’s costs of compliance are very low.

Google claims to have the responsibility to truthfully present the web as it finds it.  But of course, it already filters results both out of a sense of corporate responsibility (child pornography, hate speech) and because it is subject to orders such as the BCCA upheld already (including the right to be forgotten). No categorical prohibition will keep the judiciary and governments away from Google; rather, it will be a question of judgement and balance as to how and how far the law applies.

Google and its supporters want a free Internet.  The vision of freedom this entails is an exotic one, born of the idea that the Internet, existing in the ether of transnational cyberspace, is beyond mortal hands.  Of course, we are in a real world and this vision of Internet freedom, beguiling though it may be, can never be true.  Real world laws have intruded and will continue to do so.  If they were inimical to freedom, then none of us is free.    

Equustek deserves a remedy.  There is no reason it should be subject to piracy of its market and sales.  No principal of free speech is impinged.  Canadian—or other national—courts are Equustek’s only way to vindicate its rights.  If the Court fails it, Equustek is lost, and because of a situation Google creates.

Google is prepared to comply, if necessary, with an order by scrubbing the .ca domain, so it is primarily the scope of the order Google contests. Presumably, then, Google would admit the validity of similar orders from other jurisdictions.  Thus, Equustek could protect itself by fighting Google in every nation—an expenditure of treasure and energy that would make no sense for either party. It makes far more sense for one court to issue one properly crafted order.  The BC order is uncontroversial against Datalink, although it have worldwide effect; so too it should be acceptable against Google.

Courts should not lightly make these orders and the SCC would do well to delimit precisely circumstances and principles which make them appropriate and legitimate, such as not affecting speech that should be free (which marketing counterfeit goods is not). Thus, while it is in any event unlikely that a Canadian court order would mean much by way of precedent to Turkey or China or Russia or other despotisms, its terms could be held up to distinguish it from, for instance, an order to muzzle political opposition.  The terms of the judgement could delegitimize those from the onset.

For Google to be seen to comply with a reasonable order of a sound court of a democratic country is far from the worst that could happen to it.

If Google shirks reasonable legal requirements it will only further the image of the Internet as lawless—and ultimately drive calls for regulation, possibly, horror of horrors, by an international oversight body.  The contours of the cyberworld remain to be fully explored.  The adjudication of novel issues will establish some of those contours through energetic advocacy and wise adjudication.  How better?  If the only viable legal authorities were to keep wholly away, then into what monster might the Internet develop?

For Google to be seen to comply with a reasonable order of a sound court of a democratic country is far from the worst that could happen to it.  For now, this is the best possible outcome for Google.  It ought to like it more than lump it.

Richard C. Owens is a Munk Senior Fellow at the Macdonald-Laurier Institute.