Canadian court reflects common sense in rejecting Google appeal.

whack moleWith progress in almost anything, there are usually downsides. Manufacturing and power generation produce pollution; automobiles produce pollution and accidents; smart phones produce selfies.  In some cases, it is only common sense (at least to many of us) to try to mitigate the negative results of an otherwise good thing through legal regimes because the owners of industry don’t have a particularly solid track record for taking voluntary measures to reduce harm where they can.  It’s a familiar narrative. A factory puts too much gunk in the river; society, through its government agencies, tells them to cut it out; and the factory owners howl that there will be job losses, the end of free markets as we know them, and communist troops in the streets within weeks.  When we’re sane, we call bullshit, the factory cleans up its act, and life goes on in the free world while the river rehabilitates itself.  When we’re less sane, we believe the narrative of industry, go for the short money, and let the larger consequences of that polluted river be our kids’ problem.

Google’s search tool indexes the internet for us, and this is a good thing. It even anticipates what we are about to search for, which is a slightly creepy thing, but often impressively handy.  On the other hand, top search results can sometimes be misleading because the hierarchy of results has little to do with quality data per se.  For instance, a paid-for ad linking to a scam tech-support supplier might appear well above the legitimate site hosted by the manufacturer. This is a disservice both to the consumer and the supplier, but Google has rarely demonstrated that it cares much about these particular flaws. Traffic is traffic. Money is money. As a result, search itself can be an opportunity for bad actors to hijack business away from legitimate sellers toward inferior, infringing, or illegal goods and services.  For years, copyright holders have argued that allowing pirate sites to appear in top search results exacerbates the piracy problem; and Google has countered that search has little to with piracy.

Either way, even when Google has taken action to remove a link that contributes in some way to harming an individual or entity, they have thus far only been willing to remove specific pages (URLs) as identified in a single DMCA notice and takedown request. Thus, all a bad actor has to do is change URLs for pages on his website, forcing the injured party to keep sending a barrage of DMCA requests in an effort to stop Google searches from providing infringing results. If that sounds unreasonable, it is.  If your common sense says perhaps Google should de-index the entire site of a bad actor so that the site doesn’t appear in any results anywhere, it’s because that is common sense.

But so far, Google, the Internet industry in general, and so-called digital rights organizations like the EFF have been vehemently opposed to de-indexing sites under any circumstances, which can make them sound more like techno-fundamentalists than rational adults capable of understanding that balanced and measured restrictions designed to protect the rights of the injured from the predations of the injurious neither harm the benefits of the internet nor in any way threaten larger principles like free speech.  And in somewhat different language, that’s pretty much what the Court of Appeal of British Columbia told Google last week in a case of this very nature.

Equustek Solutions makes network devices that enable complex business equipment to communicate with one another.  One of this company’s distributors (named as Morgan Jack in the litigation) began first stripping Equustek’s name from products and selling them as competitive alternatives, and later stealing trade secrets to manufacture and sell knock-off products.  When Morgan Jack was ordered by a Vancouver court to stop operating its counterfeit business in that province, they did what any contemporary huckster does — they went virtual. They set up a web “business,” creating multiple sites, which is how one goes about hijacking search results from a legitimate supplier. Equustek, is now suing Morgan Jack for trademark and trade secrets infringement, but in the meantime the British Columbia Supreme Court granted the plaintiff injunctive relief by ordering Google to de-index the counterfeit sites from its search results, not only in Canada, but worldwide.  Google appealed this judgment, and was last week rejected on all of its major arguments, which I shall attempt to summarize.

Jurisdiction

Google claimed that because it did not do business materially in the province — no offices, no servers, etc. — that the court did not have the “competence” (legalese for authority) to order the removal of these sites from being returned in its search results.  But the appellate court responded thus:

“[Google’s] activities in gathering data through web crawling software, in distributing targeted advertising to users in British Columbia, and in selling advertising to British Columbia businesses are sufficient to uphold the chambers judge’s finding that it does business in the Province. The court, therefore, had in personam jurisdiction over Google.”

That’s a compelling response with potentially far-reaching implications because among the many defenses used by web owners who contribute to some form of harm — either by design or by accident — is the metaphysical “nowhereness” of a website.  It becomes as much a matter of existential philosophy as one of legal theory. But the tech-utopian view, deriving much chutzpah from Barlow’s Declaration of the Independence of Cyberspace, likes to describe a website as though it’s a particle, everywhere and nowhere at the same time, that it can no more be bound by terrestrial laws of Man than the quantum universe can be forced to behave according to the applied physics of our everyday, macro experience.

Of course, it’s common-sensical to think that a company that operates globally, that proudly markets its transformative role in tens of thousands of communities, and that profits handsomely by virtue of its global reach into multiple business sectors can be held to some burden of civic responsibility in every community in which it clearly does tangible business. In fact, in referring to the defendants Morgan Jack from the actual infringement case of Equustek v Jack, the judge writing this appeal decision uses the following language:

“As the product (i.e the counterfeit Equustek hardware) that they sell is a physical one which must be delivered to customers, it may be more accurate to describe their operations as ‘clandestine’ than as ‘virtual’. “

That’s certainly not a reference to Google, but it could easily be a reference to a company like Amazon in a similar case; and as Google indeed moves into physical territory, like home delivery of products, the “You can’t touch me, I don’t exist” argument may continue to sound rather unappealing to judicial ears.

Also, on the issue of jurisdiction, Google argued that upholding the B.C. Court’s injunction to de-index the sites from search results would make the company’s search services subject to every jurisdiction in the world.  And you gotta love the judge’s response to this complaint …

“That may be so. But if so, it flows as a natural consequence of Google doing business on a global scale, not from a flaw in the territorial competence analysis.”

I know it’s not very Googley to think that a global business has to sort out for itself how to comply with the laws in each country; and as pointed out in my last post, it is much more Googley to tell the nations of the world to stop acting like individual states and get with their one-world program. Of course, it is also very Googley to shape-shift from statelessness to nationalism when it suits their purposes, as seems to be the basis of one of its other central arguments in this case.

Comity

In this argument, Google vacillates from the premise, “You have no authority because we’re nowhere” to the premise, “You have no authority because we’re in California.”  In essence, courts in one country should not issue rulings that offend or disrespect the courts or interests of the country of residence of the individual or company subject to said ruling.  This argument by Google elicited much case law discussion by the judges, and then the following response:

“The only comity concern that has been articulated in this case is the concern that the order made by the trial judge could interfere with freedom of expression in other countries. The importance of freedom of expression should not be underestimated. . . .

It has not been suggested that the order prohibiting the defendants [Morgan Jack] from advertising wares that violate the intellectual property rights of the plaintiffs offends the core values of any nation. The order made against Google is a very limited ancillary order designed to ensure that the plaintiffs’ core rights are respected.”

Again, it is encouraging to see a ruling that corresponds with common sense because it seems obvious that a narrow and limited removal of links, material, or even whole sites from search results, ordered in the name of ensuring the rights of an individual or entity, does not violate the principles of free speech. To say otherwise is self-serving hyperbole on the part of the industry, not unlike the hypocrisy we see when these invasive data-mining companies and their “rights” organizations presume to warn us about the perils of government surveillance. Meanwhile, Google’s other major argument echoes another common refrain, and its rejection may have consequences well beyond this case.

Inappropriate Burden on a Non-Party

Google argued that the court did not have the authority to grant an injunction against a non-party to a litigation.  The principle being argued here (and it’s an important one) is that an injunction must be filed against a party in a dispute that is “justiceable” (i.e. can be settled in court) in order to afford the individual or entity the full rights available to a named party.  But after citing several more pages of case law, the decision states the following:

“Where such a justiciable issue exists, however, the granting of injunctive relief against third parties as an ancillary means of preserving the parties’ rights is a well-established jurisdiction of the courts.”

This addresses a central, ongoing debate about the role of web platforms which are often used to facilitate harm even if that is not the intent or design of the site in question.  Can Backpage’s site be held responsible for users advertising the prostitution of minors?  Can Reddit be held responsible for users uploading photos stolen by hackers? Can Google be held responsible for search results leading to infringing, tortious, or other criminal enterprises? In general, the answer to these questions will be no, at least so far as actual liability is concerned. And that’s probably a good thing.

But the relief that plaintiffs like Equustek are typically seeking has nothing to do with holding a site owner criminally responsible or even filing a civil suit against them for any kind of damages.  In most cases, the injured party simply wants the site owner to remove links, materials, (or in this case de-index whole sites) that are facilitating or aggravating the harm being done by some other party.  It’s kind of like saying “I know you’re not the one hitting me, but if you would stop feeding the bully amphetamines, I’d totes appreciate it.”  Some sites are simply run by bad actors, and individuals and entities harmed by them should not bear the undue burden of entreating Google to de-list one page at a time, while the bad actor keeps moving the offending page(s) around his site.

The case of Equustek v Google demonstrates that a very narrow and carefully weighed judicial approach to de-indexing clearly criminal sites can coexist with free speech and of course not break the internet. More importantly, the Canadian court places what seems like a very fair and minimal degree of burden on the site owner, rejecting the all-too-popular claim that sites are to be treated exclusively and universally as neutral, passive entities in these matters.

It will be interesting to see if Google complies with this order and whether or not this case indeed serves as precedent for future cases in which similar arguments are made by other intermediaries.  Equustek gets to the crux of one of the underlying questions of the digital age — the need to reconcile the reality that while these platforms do foster new lines of openness and expression, they also breed new methods for bad actors to do considerable harm, almost by remote control.  I find it hard to believe that we cannot balance these forces in cyberspace by means of any greater legal contortions than are required to strike this same balance in the “real” world.  Or as I think these appellate judges might say, “The internet is the real world. Time to treat it that way.”

© 2015 – 2017, David Newhoff. All rights reserved.

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