Google doesn’t have to comply with SCC order: U.S. court

Alphabet Inc.’s Google does not have to comply with an order from Canada’s highest court to remove from its search engine certain results in the United States, a U.S. court ruled Thursday, invoking a free expression argument which some experts say was not one that the Supreme Court of Canada fully considered in its original decision. “The California court’s decision is not surprising at all,” Jeremy de Beer, a law professor at the University of Ottawa, said in a phone interview. “It is exactly what several parties told the would happen.” In a brief six-page decision handed down Thursday, a San Jose, Calif., court ruled that Google satisfied criteria that would grant it immunity under Section 230 of the Communications Decency Act , which provides protection from liability to intermediaries for information put on the internet. Equustek Solutions Inc., which brought the original action in 2011, did not defend the case. “The Canadian order would eliminate Section 230 immunity for service providers that link to third-party websites,” read the decision, handed down by U.S. district judge Edward Davila. “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.” The weight of that argument was one that, experts say, the SCC did not fully consider when it delivered its June decision, which Google appealed to the California court in July. The SCC upheld a decision by the British Columbia Court of Appeal forcing Google to remove search results related to networking technology company Datalink Technologies Gateways Inc., which Equustek claimed was infringing on its intellectual property. Lawyers for Google Canada stood in front of the Supreme Court in December and argued that a decision to compel it to scrub its index of the alleged bad actors would infringe on its rights to freedom of expression and its ability to deliver a comprehensive search index. But in the 7-2 decision, the SCC ruled that it didn’t see its order engaging freedom of expression issues “in any way” and “we have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.” De Beer said the SCC “didn’t seem concerned about the consequences, such as enforcement in other countries. It was suggested to the court that this would be a real practical problem, but that suggestion did not influence the court’s decision or influence the outcome.” To satisfy the immunity principle under section 230 of the CDA, Google had to show that it was a provider of an interactive computer service, the information provided was given by another content provider and the Canadian order held it as a publisher or speaker of that information. The law stipulates that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Allen Mendelsohn, who teaches internet law at the Faculty of Law at McGill University and who also said the U.S. court decision isn’t surprising, said section 230 of the CDA is intended to protect third-party platforms, as conduits of information, from being liable for information it is not responsible for. Mendelsohn said there really isn’t a Canadian equivalent to the U.S.’s CDA, despite affording immunities for third-party providers in some other cases. In one such case, for example, the SCC found that just linking to defamatory content does not constitute defamation in itself, he said. And it varies in other parts of the world. Mendelsohn gave the example of an appeal court in Australia that, in a case last month, found Google to be a publisher that is liable to remove content. “The fact that the laws are different from country to country isn’t surprising, and that is the root of the question about whether this decision is enforceable or not,” de Beer said. University of Ottawa law professor Michael Geist previously noted that Google’s decision to challenge the order in U.S. court raised fear that there would be “conflicting rulings, protracted litigation, and legal uncertainty.” But Barry Sookman, an intellectual property lawyer at McCarthy Tétrault LLP who represented intervenors including Music Canada at the SCC, said in a phone interview the U.S. decision is on “very, very shaky ground, legally.” He says there are a couple of reasons for this. One is that Equustek did not bring a defence, turning the case into a default judgement with no precedential value. Second, Google did not bring up important cases to the court that, he said, would have devalued its own. And “shockingly,” the court used the CDA to block the order in the U.S. when the CDA doesn’t apply to intellectual property claims, said Sookman. “Google did not bring to the court’s attention that the United States has a federal trade secret intellectual property statute,” Sookman said. “I think the case is one that will be highly in future cases,” Sookman added. Later this month, the SCC is scheduled to hear another case involving jurisdiction over online content. Canadian Mitchell Goldhar, who owns a soccer club based in Tel Aviv, Israel, brought a defamation case in Ontario against Israeli newspaper Haaretz, which argued Ontario courts are not the appropriate forum. The SCC will explore what the limits are “if any, to a Court assuming jurisdiction over an alleged libel on the internet simply because it is downloaded by somebody in Canada?” De Beer, who is acting for intervenor Canadian Internet Policy and Public Interest Clinic (CIPPIC) in the case, says the SCC will have the opportunity to consider some of the impacts of the Equustek decision “in the context of conflicts of laws and jurisdiction issues in general.” For Mendelsohn, in Haaretz, “the Supreme Court will absolutely have to wrestle with that fact different laws in different countries with respect to defamation, and how defamation and expression are treated differently everywhere. So going to have to make those considerations, which is something they seemed to fail to do in Equustek.” — With reporting by Ahmad Hathout at ahathout@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Google doesn’t have to comply with SCC order: U.S. court

News | November 3, 2017

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Google doesn’t have to comply with SCC order: U.S. court

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