A U.S. Judge has partially blocked a recent decision by Canada’s Supreme Court that requires Google to delete search results not just in Canada, but in every other country too.
Citing the violation of American laws as well as a threat to speech, U.S. District Judge Edward Davila agreed to grant Google a temporary injunction, which means the company can show the search results in the United States.
The search results in question are part of an intellectual property dispute between a Canadian industrial firm called Equustek and a rival company that is reportedly misusing Equustek’s trademarks to poach its business.
In response, Equustek obtained an injunction in Canada that treated Google as a defendant even though it had no direct relationship with either company. In a controversial decision in June, Canada’s highest court agreed by a 7-2 margin to leave the injunction in place.
The ruling has created alarm among free speech advocates that courts in other countries, particularly totalitarian ones, will seize on the Canadian decision to justify similar orders, and carry out what amounts to a global form of censorship.
Google, meanwhile, sought to stop the Canadian decision from applying in the United States, arguing it violated the First Amendment as well as a law known as Section 230. The law, which is a cornerstone of U.S. Internet policy, ensures online platforms can’t be held liable for what their users post.
In his ruling, Judge Davila stated that Google clearly qualified for the Section 230 protection and that holding it liable for search results (which are automatically generated based on others’ websites) would wrongly treat the company as a publisher. Based on this finding, Davila said he did not need to decide the First Amendment question, though he did note the Canadian ruling had free speech implications:
“By forcing intermediaries to remove links to third-party material, the Canadian order undermines the policy goals of Section 230 and threatens free speech on the global internet,” his decision concluded.
It’s unclear, however, what exactly what will happen now since Google, if it restores the search results in the United States, would be going against the Supreme Court of Canada’s decision. Currently, there are over 300 search results Google has had to suppress.
According to Professor Geneviève Saumier, an expert on conflict-of-laws at McGill University, Google is indeed in a tight spot.
“Indeed, as the injunction was granted by the Canadian court, failure to abide by it would be contempt regardless of what a US court might think,” said Saumier.
The U.S. Decision, which can be appealed, notes that one option for Google is to bring his ruling before a Canadian court, and ask for a modification of the original order so that it doesn’t apply to the U.S.
In response to an email from Coins2Day, Google did not say whether it would restore the U.S. Version of the search results or try to modify the Canadian decision, but did provide the following statement from David Price, senior product counsel at Google:
“We’re pleased with the court’s decision to uphold the legal principle that one country shouldn’t be able to decide what information people in other countries can access online. Undermining this core principle inevitably leads to a world where Internet users are subject to the most restrictive content limitations from every country.”
Michael Geist, an authority on Internet law, observed that the current legal pretzel is confirming the fears of those who criticized the Canadian Supreme Court’s ruling in June:
“As I noted several months ago, the U.S. Case is precisely what critics of the Supreme Court ruling feared with the prospect of conflicting rulings, protracted litigation, and legal uncertainty becoming a reality. By upholding global takedowns without fully grappling with the implications, the Supreme Court effectively invited other courts to issue conflicting decisions without guidance on how to best resolve the issue,” Geist wrote on his blog.
