Google will appeal a decision by a court in British Columbia that requires the company to remove specific search results worldwide. While the case stems from an intellectual property dispute between two small industrial equipment companies, some legal experts say that if the decision is upheld it could have far-reaching consequences for the Internet.
The temporary order, granted last Friday by the Supreme Court of British Columbia, emerged from protracted litigation between two companies which were once both closely connected. Equustek Solutions makes a device that allows industrial machines made by different manufacturers and that use different software to communicate with each other. Those products were marketed by another company, Datalink, which sold them under its name.
While the two companies almost merged at one point, relations soured in the middle of the last decade and they split. One result of that was the court finding that Datalink’s stole Equustek’s designs and engineering to create its own device, which it largely sells through the Internet.
Trying to block the sales of Datalink’s product, however, has not been easy despite a court order banning online sales in December 2012. Datalink’s owners appear to have left Canada and the location of its Web-based operation is unclear.
In an earlier court ruling, the court ruled in favor of Equustek Solutions and its principals. After that ruling, Google Canada began to voluntarily remove the Web address related to Datalink from searches made through Google.ca. But in last week’s decision, Justice Lauri Ann Fenlon found that Datalink swiftly set up new websites with slightly different addresses every time it was blocked from search results in Canada by Google.
“Websites can be generated automatically, resulting in an endless game of ‘whac-a-mole’ with the plaintiffs identifying new URLs and Google deleting them,” she wrote.
Her solution, unprecedented for Canada, was the interim injunction requiring Google to kill all Datalink search results worldwide.
If upheld and then emulated by courts in other countries, said Michael Geist, a law professor at the University of Ottawa, the Internet could go from being perceived as a lawless place to “one where all courts apply” setting up conflicts between nations on several issues, particularly freedom of expression.
“The judge recognizes that there is this global impact but doesn’t really want to deal with it,” said Professor Geist, who holds the Canada Research Chair in Internet law. “Where this decision goes off the rails is when the court decides its order making power is limitless.”
Google Canada declined to comment beyond a short statement: “We’re disappointed in this ruling and will appeal this decision to the British Columbia Court of Appeals, B.C.’s highest court.”
Professor Geist said he was puzzled that the order involves Google and no other web search provider, like Bing, making the information still easily available.
And while he agreed that the court could, and probably should have, ordered these search results struck in Canada, he said that it overreached with its global order. It would have been more appropriate, Professor Geist said, if Equustek sought similar orders in each of the countries where Datalink does business. They are not likely very numerous. Court filings indicate that at its peak in 2005, Equustek only sold 672,000 of its devices.
For Professor Geist, the decision is troubling in two different respects. If the order stands, it would most likely put Google in the position of deciding itself which court orders it obeys and where it honors them.
At the same time, he asked how Canadians would feel if “the European Court of Justice looked to extend the right to be forgotten not just to Europe but to the rest of the world?” That ruling, released last month, requires all search providers’ European operations to remove links that people believe violate their online privacy.
In its court submissions, Google argued that following a global order by a Canadian court could put in into conflict with laws of other countries. It cited a case where a French anti-racism group said that Yahoo had broken French law by allowing users to sell Nazi artifacts through its websites. A French court ordered Yahoo to block all access from France to Nazi artifact postings stored on its servers in the United States and fined the company about $15 million.
Yahoo voluntarily removed the material and then turned around and sued the anti-racism group in California, arguing that its First Amendment Rights to free expression had been violated. A federal judge sided with Yahoo in 2002. But that was set aside by an appeals court in 2006, which did not address the question of whether American Internet companies must honor rulings by foreign courts related to postings that are unlawful overseas but not in the United States.
Professor Geist said that Google would most likely ask the appeals court to put the injunction on hold until it reaches its decision, a process that could be lengthy. It is also possible that Google will be supported in its appeal by other Internet search companies.
Based on earlier Canadian cross border Internet cases, Professor Geist said he expected that the global order would be struck down.
“This judge has decided that she’s going to decide for the rest of the world,” he said, adding that it appears that the judge, seeing the size and power of Google, may have decided that “judges need powers that are equally large if they’re going to deal with it.”
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