Google’s global reach has global implications when it comes to the law

google-devilIn a case that could have broad implications moving forward, a Canadian appeals court handed Google a rare legal setback when it upheld a worldwide injunction ordering the search giant to remove results linked to counterfeit hardware.  The ruling was an affirmation of a lower court ruling that mandated Google remove certain search results (linking to illegal products) on a  worldwide basis.

Reading the court’s decision, the plaintiff’s arguments–and Google’s responses–are familiar to anyone who’s gone toe to toe with tech behemoth and its shills like the EFF.  What’s new is that the appeals court not only upheld the lower court’s worldwide injunction, but it also shot down the tired, oft-used “free speech” canard employed by tech apologists to attack rights holders:

[105]     The plaintiffs made considerable efforts attempting to track down the defendants, and find ways to eliminate their websites. The judge’s finding that the granting of the injunction was the only practical way to impede the defendants from flouting the court’s orders amounts to a finding that the involvement of Google in this matter was necessary.

[106]     With respect to extraterritorial effects, Google has, in this Court, suggested that a more limited order ought to have been made, affecting only searches that take place on the site. I accept that an order with international scope should not be made lightly, and that where an order with only domestic consequences will accomplish all that is necessary, a more expansive order should not be made…

[107]     The plaintiffs have established, in my view, that an order limited to the search site would not be effective. I am satisfied that there was a basis, here, for giving the injunction worldwide effect. [emphasis added] I have already noted that applications can be made to vary the order should unexpected issues arise concerning comity.

[108]     Finally, I note concerns expressed by Google and by the intervenors Canadian Civil Liberties Association and Electronic Frontier Foundation concerning the openness of the World Wide Web, and the need to avoid unnecessary impediments to free speech.

[109]     The order made in this case is an ancillary order designed to give force to earlier orders prohibiting the defendants from marketing their product. Those orders were made after thorough consideration of the strength of the plaintiffs’ and defendants’ cases. Google does not suggest that the orders made against the defendants were inappropriate, nor do the intervenors suggest that those orders constituted an inappropriate intrusion on freedom of speech.

[110]     There has, in the course of argument, been some reference to the possibility that the defendants (or others) might wish to use their websites for legitimate free speech, rather than for unlawfully marketing the GW1000. That possibility, it seems to me, is entirely speculative. There is no evidence that the websites in question have ever been used for lawful purposes, nor is there any reason to believe that the domain names are in any way uniquely suitable for any sort of expression other than the marketing of the illegal product. [emphasis added] Of course, if the character of the websites changes, it is always open to the defendants or others to seek a variation of the injunction.

It’s refreshing to see a court of a law look past EFF hyperbole and distinguish between legit websites and those engaged in criminal activity.  Score one for common sense (and the law).  It should be noted that in predictable fashion, the EFF characterized the decision as “dangerous precedent” and that allows an intermediate to “edit the internet” and warned that the ruling “lays the groundwork for nations with authoritarian restrictions on speech to also impose their own rules on the global Internet.”

 I suppose we should consider it progress that instead of “breaking the internet” we are now only accused of wanting to “edit it?”

Over the years, Google has run roughshod over any effort to impede its take-no-prisoners business practices, but lately its veneer of invincibility seems to have cracked.  As this latest ruling demonstrates, courts and regulators (outside the U.S.) are finally beginning to treat Google as the global beast that it is.

In May of 2014 the Court of Justice of the European Union found that EU citizens had the “right to be forgotten” and that search engines like Google must remove search results upon request.  Last November, Article 29 Data Protection Working Party,  the group charged with overseeing the ruling, issued guidelines on implementation that .com domains worldwide, not just those in the European Union should be included in requests for data removal.

7. Territorial effect of a de-listing decision In order to give full effect to the data subject’s rights as defined in the Court’s ruling, delisting decisions must be implemented in such a way that they guarantee the effective and complete protection of data subjects’ rights and that EU law cannot be circumvented. In that sense, limiting de-listing to EU domains on the grounds that users tend to access search engines via their national domains cannot be considered a sufficient mean to satisfactorily guarantee the rights of data subjects according to the ruling. In practice, this means that in any case de-listing should also be effective on all relevant domains, including .com. [emphasis added]

In April, the EU’s scrutiny of Google’s business practices became even bolder when it charged the company with anti-trust violations.  From the Wall Street Journal:

The European Commission took direct aim at Google Inc. Wednesday, charging the Internet-search giant with skewing results to favor its comparison-shopping service. But the formal complaint may only be the opening salvo in a broader assault that prompts big changes at Google.

European antitrust chief Margrethe Vestager said she continues to examine other domains, such as travel and local services, where Google is accused of favoring its own services over those of others. She also opened a second front, intensifying a separate probe of Google’s conduct with its Android mobile-operating system.

Given Google’s growing influence as a Washington lobbying force, don’t expect to see U.S. lawmakers following in the EU’s footsteps any time soon.  However, any crack in Google’s armor is progress.  While U.S. authorities won’t hold Google accountable, it seems like the rest of the world just might.