Should every court and country have the right to demand that things are de-indexed worldwide, now that Canada has done so? Does China have the right to demand Tiananmen Square be de-indexed? Germany and Nazi symbols? Russia and satire about Putin? North Korea? The United States? If not, how do we decide?
The previous framework was, "you can demand whatever you want within your borders; if it is unacceptable, Google will leave." This decision throws a bit of a wrench into that.
I touched upon this, but honestly this is a very, very large subject that requires familiarity with the Berne Convention and TRIPS/ACTA in order to fully explain.
In the Canadian decision, the de-listing order is contingent on that order not being contrary to compliance requirements elsewhere in the world. However, the SCC doesn't have knowledge of all of those laws, nor should it. Accordingly, it stated the burden upon showing a contradiction rests with the applicant, Google, who didn't want to comply with the order. Google would need to cite specific laws they were in contravention of, rather than just pleading that there may, maybe, somehow be a contradictory requirement. What if there wasn't? Should Google still get to plead international comity in that instance? No.
Positive freedom of speech legislation might work as an alternate requirement, but this was not plead, and this was not a situation where the speech in question is political or particularly protected. It is a very clear instance where a supplier has fled Canada (and they can't find where they're based) in order to attempt to continue crystal clear trademark violations which are causing actual damage to a Canadian business.
The current international trademark framework means that the majority of nations in the world would actually require compliance with this order (well, not exactly, but close enough). The big question is how that machinery should be activated. If the Respondent had the money to pursue passing-off litigation in every jurisdiction, they would likely arrive at a similar result, but functionally, a small company won't be able to pay x200+ times the legal fees for a similar result while their dealflow is being sapped.
This decision, even read very broadly, wouldn't provide countries with the ability to de-index items. Countries don't need that ability; they already have it. Most, however, have bound themselves not to exercise it, but certain, like China, actively pursue control as an overt element of their policy agenda.
I feel like I'm doing a bit of a disservice to the topic, because there is a lot of small nobs and levers that I can't get into without exploding this into a 20 page memorandum. I am confident in stating that the freedom of speech concerns arising from this case are not as dire as portrayed.
Can you help me understand something. Why do they have to cite laws this ruling is in contravention of instead of citing laws that Google is in convention with to prevent worldwide dissemination? One would think that you don't have to prove what the government proposes you do in region X to be illegal there, but rather prove that what you are already doing in region X to be legal there.
The Supreme Court did cite the test governing the provision of interlocutory orders. That test is well known law from RJR MacDonald. There's a bit of a blurb regarding the case in my comment below, but you can look up the case and you'll find the full test and commentary.
The government isn't proposing anyone do anything; A private party is, and asked for the court's help. The second private party is very clearly acting illegally and appropriating the value of the first party's brand. They've gone as far as to flee the province to try and dodge the court order which attempts to halt them from doing so. The first party asked google to take down their listings because those listings are the channel through which the illegal brand appropriation is occurring. The court agreed.
Google said they didn't want to comply with the order partially on the basis that there might be some compliance contradictions. The court said "Sure, but you didn't plead any evidence that that's the case. We judge what's in front of us. If you're serious, we have a mechanism to deal with it. Make an application like anyone else who wants to amend an interlocutory order. Bring us evidence there's another law which prohibits you from taking the listing down, and we'll amend the order".
The reason why courts only judge what's in front of them is so that the other side can actually argue against their points. If Google said "Law X from Country Y prevents us from doing that", the Respondent could reply "The only thing Law X from Country Y does is regulate how sweet twinkies can be, please stop lying to the court". The alternative, forcing the Respondent to prove that there is NO contradiction in every other country, is impossible. Google's response, however, requires 1 list distribution email in legal saying "Anyone have a problem in their country? Let me know". This is the "balance of convenience" portion of the RJR MacDonald test.
The unfortunate part of that test appears to be that the private party can request the moon. A reasonable person might expect a court that is required "judge what's in front of them" to not apply their judgement to foreign jurisdictions.
I wonder how this would be applied to a physical storefront from a global retailer that happened to have presence in Canada...I suppose they'd be forced to remove physical non-Canadian products from even their non-Canadian stores. Because hey, retailer, show us where it's illegal for you to remove this product. You can't? Then apply our ruling worldwide.
Is my analogy off? Or is it, as I suspect, the fact that the decision is easier to accept digitally part of the reason why it's being levied?
The RJR MacDonald test appears incredibly subjective.
This test, if in fact it is narrowly construed as show-us-where-you-can't, is a scary defendant test to counter decisions. Or if the test is being vaguely construed for these means, it is equally scary.
Private parties cannot request the moon. The test for interlocutory orders is HARD to satisfy, and involves substantial expense for litigants to raise. In Canada, if you lose this motion, you're paying half your opponent's legal bills most of the time, too.
You need three things to satisfy the test:
1) a serious issue to be tried
2) irreparable harm if the injunction is not granted
3) that the relief is just on the balance of considerations
Note that irreparable harm and balance of considerations are terms of art, both of which heavily restrict the ambit of what is admissible under those sections of the test, a process which is continually monitored by the development of subsequent jurisprudence.
But even if the injunction test is satisfied,
The physical products hypothetical you're advancing is incomplete and leaves out a number of facts which are instrumental in the court's ruling. Assuming the ruling is applicable outside of those parameters requires that clear arguments be made regarding why changing those parameters isn't a big deal.
As an exercise, try to go through the ruling and pull out each of the factual elements which the court seems to rely upon in coming to their decision. You'll note they rely on a lot of determinations to get to the decision they ultimately arrive at.
Other replies have gracefully dealt with the physical goods analogy more directly: things get ripped off shelves all the time. That's why the Apple v. Samsung cases are so high-stakes.
It is not the previous, original decision that affects Canada only that I am concerned about. It's the global reach here. Some of their wording about Google inadvertently assisting the non-Canadian company outside Canada strike me as not understanding how the web works. I concur with the dissenters that mentioned the issue should be taken up with the other company's government (France?). It just reeks of protectionism, applied outside the country's jurisdiction because they have the leverage to do so.
> That's why the Apple v. Samsung cases are so high-stakes.
It would be like the US court told Samsung they couldn't violate Apple's US patents on phones sold in Mexico.
Regarding the retailer example: Suppose they have been selling counterfeit products and a Canadian court orders them to remove the product from all their stores. It would be completely justified in requiring this to happen worldwide. Allowing a modification of the order if it conflicts with law in other jurisdictions is just being generous.
However, the only consequences that can be imposed for failing to follow the order relate to doing business in Canada. Any corporation has to decide for themselves whether complying with the local law, even if it requires action somewhere else, is worth it for them.
It is in fact quite common for countries to leverage their local power into effecting a worldwide result. E.g. the US embargo on Iran cut off anyone doing business there from access to US financial institutions, and almost nobody wanted to risk that.
I don't think affecting a worldwide result using laws affecting companies based on your country is the same thing.
However I am curious, do you know of any example where a country ordered a company not based in their country to change something for other countries including the country they were based in? Surely there are sweatshop or other working condition examples, I just can't find any where the changes were required to apply for operation in other countries too. I suppose it would be like your answer to my hypothetical, I'm just curious if it has ever happened.
> It would be completely justified in requiring this to happen worldwide
I disagree if the company isn't based there (assuming by justification you meant to us as humans as opposed to legal justification).
Agree 100% that this test sounds like asking someone to prove a negative in order to force action at their expense.
The retailer in this case is Google, and their entire business model rides on being able to ship an information product worldwide - that is, their index.
How is it Google's responsibility to no longer aggregate their index, since they are now expected to deviate from the information generated from the expressions of others' statements, upon which its index was originally based? Is a quotation no longer an acceptable device to publish or derive information, in Canada?
Unless Google is committing a crime by repeating what was said, or pointing to someone who said something, then why is it legally permissible for Canada to order Google to do anything at all here?
Even if Google is citing someone who did something illegally in their index, is it a crime for Google to quote what was said, and to publish the fact that persons said something -- nationally, let alone internationally?
It sounds like this defense was screwed up on two fronts:
1) Where does Canadian law allow anyone to remove or suppress what was recorded in a non-binding quote containing what was previously observed to have been published by others, in a civil trial?
2) Freedom of speech, as a form of detailing quotes in the aggregate, in any other country in the world is not compatible with the idea of removing recorded quotes from the aggregate product of what was internationally found in a survey. That is the precedent. What was and will be found on the internet from the standpoint of other countries Internet connections, does not change just because Canada doesn't like it.
Pursuing #2 seems be the best option since the courts completely breezed over #1. The need to stick to the fundamentals that their product has never actually guaranteed correctness or truth, nationally or internationally. The Google product guarantees an aggregation of quotes. The product attempts to arrive at correctness or truth by algorithmic-ally deriving meaning from the aggregate, not the other way around.
... Google (the product) does not derive the aggregate by manually specifying exceptions one after the other whenever John Doe catches someone lying on the internet. To do so on an international scale would forcefully change Google (the product), not in compliance with any Canadian law (afaik), and not in compliance with any international precedent.
It would be akin to suing a newspaper to have information forcefully removed, in all countries of the world, even though it was published with valid quotes and perfect reporting. If Google (the product) wanted to do this in a way that was respectful of the nature of the request, that it is based on a quote, it would be better to think of the court's decision as being a qualifier on the nature of the information -- "This website may be untrustworthy. (Legal Information: ...). But this request cannot be compelled internationally, because it is not Google's responsibility to ascertain correctness of the contents of a quote. For something that was internationally said of the quote, Google can internationally do with that information whatever they please.
The fact that the Google product is an aggregation of quotes, I think, has escaped the courts. And that may be what they are accidentally glossing over when trying to compel Google to change those quotes, internationally, in a civil trial.
I suppose limitations apply by Google's TLD. Why don't Google block by geo-IP? If request comes from Canada, on any Google property, apply the filter. If request comes from China, it has nothing to do with Canada, so they should have nothing to complain about. I don't like geofencing, but this court decision is absurd.
Arguably, Canada can complain about whatever they want (according to their laws), that affects a company that hopes to do business in their country. The US prohibits American companies from selling weapons to it's enemies. By your logic, this transaction, which takes place outside of the US, is none of their business. But you had better believe they make it their business.
Google is free to tell Canada to shove off... if Google doesn't want to do business in Canada anymore. And it's in Canada's best interests to protect their citizens' intellectual property both locally and abroad.
There's nothing "absurd" about this decision. Canada has said that this must be the case if Google does business there. There's a huge issue with people's notions that no country should be able to regulate Google's behavior. The nature of them being an international corporation should not mean they are immune to everyone's laws.
Rather than an international corporation being subject to nobody's laws: International corporations should be required to follow all of them.
> The US prohibits American companies from selling
> weapons...
Yes, but this is actually instructive. Google is not a Canadian company, so the more accurate comparison would be the US trying to control who the Russian Kalashnikov Concern sells AK-47's to, just because they're also for sale in the US.
> The nature of them being an international
> corporation should not mean they are immune
> to everyone's laws.
Nobody's advocating that the likes of Google should be immune to everyone's laws, but rather that it's overstepping that any given country is going beyond just instructing an international corporation on how to behave within their borders.
> International corporations should be required
> to follow all of them.
So if Saudia Arabia decides that showing any images of women more revealing than the niqab in Google Images that should be applied globally? This is just a recipe for a race to the bottom.
There's realistically no limit to what a country can require if an international company wants to do business within their borders. Surely, Saudi Arabia could make that requirement, and then Google would need to decide whether or not it wanted to comply, or stop doing business in Saudi Arabia.
Presumably, in your example they would likely pull out of Saudi Arabia, given the scope of the impact on everyone else versus their income from Saudi Arabia. In this case, Canada has ordered one search result, so Google obviously is going to comply rather than losing the Canadian market (and it's three offices there).
Countries have no inherent requirement to make it easy for international businesses to operate, and I don't feel they should. They should be looking out for their citizens first and foremost, and that's exactly what Canada did here.
A lot of people would be better off. Few to no international companies could be found totally innocent of tax dodging schemes and the like.
But rather, my point is: If a company wants to do business in multiple countries, they are going to have to obey multiple countries laws. Nobody's required to do business globally, and no country is required to enable it.
And if the threat of losing access to Google search is such a risk that a country would need to capitulate to a corporation's demands, it would only be more evidence for the need to bust that monopoly up.
> The current international trademark framework means that the majority of nations in the world would actually require compliance with this order
Given the above, I'm not sure if it's still true. And even if it was, I fail to see why Canadian court should be allowed to effectively make this decision for others. Have all countries in the world obliged to recognize Canadian censorship orders yet?
> I am confident in stating that the freedom of speech concerns arising from this case are not as dire as portrayed.
Meh, it's not exactly reassuring if you say that this ruling doesn't matter because it's business as usual.
Unfortunately, the evidence you've brought to the table actually doesn't agree with your position, but you aren't trained enough to understand it yet.
Read the link you cited, specifically paragraph 5. Look up passing-off as a tort, then look up Subsection 7 c) of the Canadian Trademarks Act.
There are often trade-secret dimensions in situations where a supplier is committing trademark infringement, but this is a clear situation where there's PLENTY of trademark infringement going on.
> Canadian legal precedent doesn't apply in other countries.
Legally, yes. I bet Chinese courts don't recognize Canadian precedents. However, China is now free to claim that if Canada chooses to enforce censorship in China, they will be free to enforce censorship in Canada by similar means, if they ever feel like doing so.
Yes, but IIRC Google got kicked out of China for failing to comply with Chinese regulation in China, not for failing to comply with Chinese regulations in the US, Europe or Antarctica.
Also, it didn't happen without some level of pushback from the American government. Now imagine the drama if China tried to impose their court orders on the US soil that way.
No but judges are absolutely influenced by foreign decisions. Why wouldn't they be? Smart people on the supreme court, similar laws, why not consider what they arrive at?
Not quite the same thing, because as the judge said in the summation:
"This is not an order to remove speech that, on its face, engages freedom of expression values, it is an order to de-index websites that are in violation of several court orders."
The problem is that these websites operate outside of this court's jurisdiction and the de-indexing is supposed to happen outside of this court's jurisdiction. It ought to be none of the court's business.
The previous framework was, "you can demand whatever you want within your borders; if it is unacceptable, Google will leave." This decision throws a bit of a wrench into that.