Skip to main content

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at michaelgeist.ca.

Last week, the Supreme Court of Canada heard arguments in a case that strikes at the heart of law in the online world. Google v. Equustek Solutions stems from claims by Equustek, a Canadian company, that another company used its trade secrets to create a competing product and engaged in misleading tactics to trick users into purchasing it.

After struggling to get the offending company's website taken offline, Equustek obtained a British Columbia court order requiring Google to remove the site from its search index. Google voluntarily removed search results for the site from Google.ca search results, but was unwilling to block the sites from its worldwide index. The B.C. court affirmed that the order applied on an international basis, however, issuing what amounted to global takedown order.

Story continues below advertisement

The Supreme Court hearing – which attracted intervenors such as the Wikimedia Foundation, Electronic Frontier Foundation, as well as the music and movie industry associations – focused on issues such as the effectiveness of a Google-targeted order, where the responsibility for identifying conflicting laws should lie, and the fairness of bringing an innocent third-party such as Google into the legal fray.

Yet, largely missing from the discussion was an attempt to grapple with perhaps the biggest question raised by the case: In a seemingly borderless Internet, how do courts foster respect for legal rules and avoid vesting enormous power in the hands of Internet intermediaries who may ultimately find themselves picking and choosing among competing laws?

The effectiveness of a Google-targeted order and the burden of identifying potential global legal conflicts generated spirited debate before the court but no obvious answers. While Google noted that focusing on a single search engine ignored numerous alternatives and failed to remove the offending content from the Internet, Equustek emphasized Google's unparalleled online influence and its ability to limit public awareness of any website.

The question of responsibility presented a similarly difficult choice. Google and some intervenors argued that it should fall to claimants to assure a court that an extraterritorial order would not violate the laws of other countries. Equustek responded by pointing to Google's economic power, arguing that it was fairer for a company with billions in revenue that does business around the world to bear the burden of identifying legal conflicts.

While those issues seemed to leave the court divided, it barely addressed the elephant in the room, namely the dangers of ceding decision-making on whether to abide by the law to global Internet giants such as Google and Facebook. Indeed, if the Supreme Court of Canada upholds the validity of a global takedown order without consideration of the impact in other countries, it will effectively leave it to Google to decide whether to comply with Canadian law.

Google seems unlikely to ignore a Canadian court order, but what happens if a Chinese court orders it to remove Taiwanese sites from the index? Or if an Iranian court orders it to remove gay and lesbian sites from the index? Since local content laws differ from country to country, there is a great likelihood of conflicts. That leaves two possible problematic outcomes: local courts deciding what others can access online or companies such as Google selectively deciding which rules they wish to follow.

Courts seeking to strike the right balance face a difficult challenge because, if they are unable to assert jurisdiction, the Internet risks becoming a proverbial "Wild West" with no applicable law. If every court asserts jurisdiction, however, the online world becomes over-regulated with a myriad of potentially conflicting laws.

Story continues below advertisement

The temptation for courts will be to assert jurisdiction over online activities and leave it to the parties to sort out potential conflicts. But when it comes to Internet jurisdiction, exercising restraint and limiting the scope of court orders is likely to increase global respect for the law and the effectiveness of judicial decisions.

Report an error
Comments

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to letters@globeandmail.com. Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to letters@globeandmail.com. Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff.

We aim to create a safe and valuable space for discussion and debate. That means:

  • Treat others as you wish to be treated
  • Criticize ideas, not people
  • Stay on topic
  • Avoid the use of toxic and offensive language
  • Flag bad behaviour

Comments that violate our community guidelines will be removed.

If your comment doesn't appear immediately it has been sent to a member of our moderation team for review

Read our community guidelines here

Discussion loading ...

Due to technical reasons, we have temporarily removed commenting from our articles. We hope to have this fixed soon. Thank you for your patience. If you are looking to give feedback on our new site, please send it along to feedback@globeandmail.com. If you want to write a letter to the editor, please forward to letters@globeandmail.com.