Armed with the support of human rights and civil liberties organizations, Google is at the Supreme Court of Canada on Tuesday to appeal a ruling it says poses a threat to freedom of expression and access to information both in Canada and around the world.
Google wants to overturn a Canadian ruling it says could pave the way for countries to use their courts to block worldwide access to any internet content they don't like.
According to documents filed by Google's legal team, a decision made by the B.C. Supreme Court effectively issues "a permanent, mandatory, worldwide injunction … intended to silence speech regarding the existence of publicly accessible websites on the internet."
'Free speech groups are really, really concerned about this case, because of the precedent it sets' - Dinah PoKempner, general counsel for Human Rights Watch.
This all started with an intellectual property rights case in B.C.
The defendant — a company accused of stealing trade secrets from Burnaby, B.C.-based technology company Equustek — was ordered to stop doing business online.
According to B.C. court documents, Google was not a party to the legal action, but had "voluntarily" complied with Equustek's request that the defendant's web pages be removed from internet searches originating in Canada.
However, Equustek then argued that because web sales are global in nature, Google should not only block the infringing company from appearing in web search results on Google's Canadian domain, Google.ca, but Google sites worldwide. The B.C. Supreme Court agreed and issued the order Google is now fighting in Canada's highest court.
Canada could set 'international law norm'
The concern, according to David Price, a lawyer for Google, "is the principle of whether a court in Canada can direct Google to take an action to delist something [including search results] in a manner that may not be consistent with the laws of other countries where Google does business."
In turn, if Canada helps to set an "international law norm" establishing that global search removal orders are OK, Price said other countries and courts "may seek to impose a delisting obligation on Google that would end up being effective in Canada that would not be based on Canadian conceptions of freedom of expression and the right to access information."
Issues of jurisdiction are "one of the earliest internet problems," said Tamir Israel, a staff lawyer with the Canadian Internet Policy and Public Interest Clinic (CIPPIC), who has been closely watching the case.
"Because [the internet] was this network that wasn't in any place at once, and was everywhere at once, it was one of the first challenges that was flagged. Like, how are laws, legal systems, which have always been territorial and based on physical territory, going to work on this medium?"
Rights groups intervene
Several high-profile rights organizations, including Human Rights Watch, the Canadian Civil Liberties Association and the Electronic Frontier Foundation (EFF), have listed themselves as intervenors supporting Google's case in the Supreme Court.
"Free speech groups are really, really concerned about this case because of the precedent it sets," said Dinah PoKempner, general counsel for Human Rights Watch.
"Courts are experimenting with this idea as a way to deal with the problem that the internet is transborder," PoKempner said. "In this case we have to be, I think, a bit deferential to the speech impact, the rights impact, and not simply to the problem of the individual intellectual property right holder."
That impact, according to a news release issued Monday by EFF, "censors Google search results for users everywhere" and "violates our rights to freely search the web without government interference."
"We've argued essentially that they should only be ordered [to delete search results] in the most extreme circumstances, where the rights at issue are so fundamental that they outweigh any concerns about free expression or the right to receive information," said Vera Ranieri, a staff attorney with EFF.
'Red herring' argument
Barry Sookman, a senior partner at McCarthy Tétrault law firm specializing in technology, internet law and intellectual property, says raising the threat of global implications for freedom of speech is a "red herring."
"The nature of the alleged speech [in this case] is a website purely devoted to selling illegal goods," said Sookman, who is representing various music and publishing groups concerned with intellectual and cultural property protection as intervenors on the other side of the Google case.
"There could be a future case, with different facts, where the court would have to say, 'OK, is there some unnecessary interference with speech?'" he said. "But that's not this case."
But both Google and freedom of speech advocates say the implications reach far beyond the specific details of the case itself.
"The idea that just any country in the world can issue a global injunction is disturbing," said PoKempner.