Google Equustek B.C. court ruling raises fears of 'censorship tourism'
Lawyer for B.C. company warns against hysteria in wake of worldwide order against search engine
Vancouver lawyer Robbie Fleming was on a much-needed holiday in Hawaii, reading about a European court of justice ruling concerning a California company when he got word a B.C. judge wanted submissions on the case.
The company: Google Inc.
The European ruling: the so-called 'right-to-be-forgotten' — which forces the search engine to remove old, irrelevant links about people on request.
And Fleming's connection? He represented a B.C. company in another groundbreaking case involving the internet giant — one that recently saw the B.C. Court of Appeal uphold a worldwide injunction against Google.
"My point is that the world is getting a lot smaller," he said. "Courts are much more aware of each other."
A month after the appeal court ruling, the case continues to make legal waves across the world
Critics claim the decision sets a dangerous precedent allowing local courts to overstep international boundaries. But Fleming calls that reaction 'hysteria'.
The facts of the case are relatively simple.
The Burnaby-based plaintiff, Equustek, manufactures networking devices for industrial equipment.
The company obtained numerous court orders against Datalink Technologies for allegedly stealing its technology.
Google was an innocent third party to the original lawsuit, but was dragged into the case because Datalink relies on web search engines to direct potential customers to its websites.
Google voluntarily removed 345 links from search results on google.ca.
But according to the appeal court decision, that didn't deter Datalink.
"The plaintiffs described the effect as being like a game of 'Whack-A-Mole,' in which the defendants were nimble enough to circumvent Google's voluntary arrangement."
And so Equustek asked B.C. Supreme Court Justice Lauri Ann Fenlon for a worldwide injunction.
"The courts must adapt to the reality of e-commerce with its potential for abuse by those who would take the property of others and sell it through the borderless electronic web of the internet," Fenlon said in her original ruling.
"That order is necessary ... to ensure that the defendants cannot continue to flout the court's orders."
The case caught David Post's eye in Washington, D.C., where he is a senior fellow at the New America's Open Technology Institute.
"British Columbia law should not control what people see on the internet in Finland," he said. "But yet, that's the consequence of the court's order."
In the same way the U.K. is considered a better bet to obtain libel judgements against international companies than the U.S., Post says — only half-jokingly — the decision could make B.C. a destination for 'censorship tourism'.
"You get a few days in lovely Vancouver, you go to Victoria, and you get to have your injunction issued against a global search engine while you're on the beach," he said.
The San Francisco-based Electronic Frontier Foundation, which intervened in the case, fears the decision might lead to lowest-common denominator law, where companies like Google are forced to respond to restrictive judgements from courts in Saudi Arabia.
But Fleming says that's missing the narrow focus of his case.
"It's not about local morality at all," he says.
"It's about well-established rules of international intellectual property. And the rules of intellectual property aren't identical from country to country, but broadly speaking, they're very similar."
Justice Fenlon herself makes much the same point in another decision last month in which a lawyer sought a similar injunction using her previous ruling as a precedent.
That case was about defamation. And Fenlon was reluctant to issue an order she knew might conflict with U.S. protections around free speech.
Like Fleming, University of Calgary law professor Emily Laidlaw believes many of the fears around the case are overblown.
But what does trouble her is the idea a third-party company like Google can be issued an injunction without being named in the original suit. She fears that might have economic consequences for smaller companies.
"It engages Google in a way that touches on all these major issues that are going on in the world," she said.
"Should we be able to go to private companies and ask them to remove content from search results? Should we ask Facebook to delete particular groups? And what responsibilities do these private companies have to follow through with those requests?"
For its part, Google says it is still reviewing the appeal court decision, but won't comment beyond that.
The next step would be an appeal to the Supreme Court of Canada.
The company fully complied with Fenlon's ruling a year ago.
Perhaps not without coincidence, Fleming says, Equustek's sales have gone up.