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Canada's top court backs order for Google to remove firm's website from searches

257 points by executive 9y ago

andrewclunn 9y ago
I'm much more worried about these governments and their censorship than I am Google's near monopoly on search.
marlokk 9y ago
If you kill freedom, freedom wins.
ABCLAW 9y ago
Tremendously impactful decision, regardless of which side of the case you support. Interestingly, the majority addressed a Google argument centered upon concerns regarding the possibility of international censorship: "Google’s argument that a global injunction violates international comity because it is possible that the order could not have been obtained in a foreign jurisdiction, or that to comply with it would result in Google violating the laws of that jurisdiction, is theoretical. If Google has evidence that complying with such an injunction would require it to violate the laws of another jurisdiction, including interfering with freedom of expression, it is always free to apply to the British Columbia courts to vary the interlocutory order accordingly. To date, Google has made no such application. In the absence of an evidentiary foundation, and given Google’s right to seek a rectifying order, it is not equitable to deny E the extraterritorial scope it needs to make the remedy effective, or even to put the onus on it to demonstrate, country by country, where such an order is legally permissible." In other words, if an interlocutory order with international scope would violate foreign freedom of expression legislation (or other legislation in general), it would be possible to seek to vary the interlocutory order by raising those issues specifically. This framework should be familiar to jurists in Canada, as it resembles the Paramountcy doctrine. Whether or not this case will be widely used is unclear. This case is nearly 100% fact-perfect for the Respondent - it honestly looks like a civil-rights test case. It is very possible that imperfect everyday facts provide sufficient fuel for judges to distinguish this case from the case in front of them. The dissent is interesting because it lists a number of pieces of evidence the dissenters would have needed to see before moving forward, including the impact of the first order on sales figures. These dissents often provide counsel with information regarding how to structure future cases in order to avoid outstanding concerns. These are my first pass thoughts. I'll probably read it through another two times before the day is done.
- joatmon-snoo 9y ago
  Not a lawyer, so I'm happy to see that the passage that caught my eye also caught yours. Other bits that I found interesting: > [107] Google asserts that the Court does not have the authority to make an order of the kind sought. In issue is whether the Court has “subject matter competence”. The plaintiffs and Google agree that the type of order I am asked to make has never before been made by a Canadian court. > [119] I do not accept Google’s submission that the Court only has authority to make an order against a non-party in relation to contempt or to further fact finding necessary to effect justice. Lack of precedent should not be confused with lack of subject matter competence. > [133] I conclude that the Court has authority to grant an injunction against a non-party resident in a foreign jurisdiction in appropriate circumstances. ===== Something I have to wonder about: there's nothing here that speaks to the technical difficulties intrinsic to the process of de-listing a website. Say Google blacklists "www.very-obviously-illegal-under-canadian-law.com". The offending party then registers "www.completely-irrelevant-url-1.com" and "www.irrelevant-url-2.ca" and so on. Is Google expected to permanently block these URLs? What if some of these URLs were obtained illegally (or more generally, what burden of proof must be achieved to demonstrate that a website should be blacklisted)? Is there some way for people - especially prospective buyers for these DNS records - to know that these URLs have been blacklisted? ===== Ruling link: http://www.courts.gov.bc.ca/jdb-txt/SC/14/10/2014BCSC1063.htm http://www.courts.gov.bc.ca/jdb-txt/SC/14/10/2014BCSC1063.ht...
- cbhl 9y ago
  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.
  - ABCLAW 9y ago
    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. Edit: Made the middle a bit clearer.
crb002 9y ago
Google should have country specific feeds (canada.google.com) instead of domains. Then location based filtering is forced on the browser where it should be.
- QuercusMax 9y ago
  I'm not sure I follow - canada.google.com is a domain, as is google.ca. What are you actually suggesting?
timthelion 9y ago
I was expecting the ruling to involve some really bad behavior such as selling misslabeled drugs or invading the privacy of private individuals. Instead it is a benign product relabling suit. IMO, product relabeling doesn't even harm the company who's products are relabeled.
- shallot_router 9y ago
  Could you elaborate? I don't really know much about relabeling. The company seems to be claiming that the infringing company is selling products under company A's name when they have no actual affiliation, which sounds like ordinary fraud to me. edit: Nevermind, I misread. There is no fraud or impersonation occurring.
  - timthelion 9y ago
    If the article is correct, I quote "Equustek had successfully sued another company for relabelling its products and passing them off as their own.". That means that the offending company was buying Equustek's product and putting a different sticker on them.
    - shallot_router 9y ago
      Ah, thanks. I parsed that sentence incorrectly the first time I read it.
kodablah 9y ago
A hypothetical: Company A is in country X and company B is in country Y. Country X declares on behalf of company A that company B be blocked from searches worldwide (including country Y). Country Y declares on behalf of company B that company B cannot be blocked from searches (at least in country Y). Who wins in the global context? Whichever can/will fine the most? Does this give benefits to the overly-regulating country/region and is that what we want? Another hypothetical question: Can Canada require some retailer in the US to remove another non-Canadian company's products in the US just because the retailer and a competing company both have presence in Canada?
- bradleyjg 9y ago
  Ultimately one company can't do business in, and be subject to the jurisdiction of, two countries whose laws require them to do opposite things. If push really came to shove Google would leave Canada--no offices, no ad sales, no shipping physical product there. Maybe even put a clause in their ToS saying that their products couldn't be used from Canada. If they did all that and Canadian courts still tried to fine it or award damages against it then other countries' courts would refuse to enforce those rulings.
  - kodablah 9y ago
    I consider this the nuclear option and one that is unlikely for a large corp if we're just talking about fines (as opposed to purely opposing laws as in my hypothetical). For a normal company if the ROI of their presence > the negative ROI of complying with orders, they will remain. My question was more targeting the public and whether they accept that more restrictive regional rulings will win out. This also comes into play w/ recent EU rulings. With a large company, fragmenting features in location-specific ways is reasonable. But for other smaller companies, they have to weigh whether the loss of customers costs less than location-specific feature implementations. In general, with the internet, we should err on the side of lesser regulation IMO (which can appear to favor businesses over consumers). But this has been a political discussion for ages, predating globalism.
    - 9y ago
pavanky 9y ago
This kind of stuff should be arbitrated in an international court. Giving an authority in a single country the say on what can and can not be seen on the internet world wide is a terrible idea.
- vkou 9y ago
  Under which legal framework? Common law? Civil law? Old Testament law? Sharia law? The framework laid out by the Constitution of the Soviet Union? The US codex of law, circa 1953? Circa 2007? Circa Citizens United? Should everyone get a chance to vote for choosing it? Should we decide based on population of respective countries? Or do a one-country-one-vote thing? Maybe one dollar of GDP, one vote? Why should Chinese commercial law have any bearing on a trade dispute between Honduras, Belgium, and Spain?
  - bdamm 9y ago
    Multi-national binding protocols have been done in the past and will be done in the future. Where the international community sees it necessary, there can be the creation of international law. Certainly this case is something for which international law and enforcement regimes can be created.
    - vkou 9y ago
      They are all the products of bi-lateral or multi-lateral treaties, hammered out in secret meetings between senior members of participating governments. There is absolutely no "International community" involved in this process. It's a private settlement between directly affected parties. These agreements also tend to be incredibly undemocratic, and are often hilariously hostile to the interests of the constituents of said governments. Be careful what you wish for - what you'll get is less like the European Union, and more like the TPP.
  - keithpeter 9y ago
    https://www.itlos.org/ https://www.itlos.org/ Something like this has existed since league of nations days. The model appears to be a convention which individual states accept and pass into their national laws, and then a tribunal to adjudicate on disputes about the terms of the convention - so the tribunal only sees a small number of cases. Not routine stuff. https://link.springer.com/article/10.1007/BF03195054 https://link.springer.com/article/10.1007/BF03195054 This page lists some of the adjudications.
gdulli 9y ago
> Google voluntarily removed hundreds of webpages from its Canadian search results on Google.ca. But the material continued to show up on Google's global search results. > So Equustek obtained a further injunction from the court ordering Google to remove the websites from its global search results. > Google appealed and argued it was not a real party to the dispute, and that a global injunction would violate freedom of expression. Google didn't object in principle to removing the listings from google.ca but did object to removing them from the the main site results. What does that mean, there's actually no objection in principle but there's enough technical challenge or cost to modifying the global results that they're willing to fight it in court?
- skybrian 9y ago
  There's a question of jurisdiction. Should any country's courts be able to restrict what happens in other countries?
  - vkou 9y ago
    I don't know if they should, but de-facto they can. American companies are, for instance, forbidden from doing business within Iran, North Korea, etc. Likewise, nothing stops the US from passing an enforcing a law that requires any foreign companies that do business with the US to follow US laws, even in their operations outside the US.
    - L_Rahman 9y ago
      My mental model for this is as follows: 1. If you are a company based in and operating as a legal entity in Country X, the laws of Country X apply to your business as a whole, including services you offer in Country Y and Country Z. 2. If you are a company based in and operating as a legal entity in Country X but are offering services in Country Y, the laws of Country Y apply only to the services you offer in that Country Y. All of this can then get mushy and complicated based on international governing bodies, multinational trade agreements and nation-state soft power but absent those constraints, I believe this holds.
    - 9y ago
Matthewiiv 9y ago
This is total bullshit. Relatively benign ruling but sets a dangerous precedent.
- vkou 9y ago
  For which courts? Canadian rulings would not be considered precedent-setting in a Saudi court.
  - awa 9y ago
    Its precedent settings i.e. if google follows it, then china and saudi court can ask them to do the same since these kind of rulings become fair game.
    - dragonwriter 9y ago
      Chinese and Saudi courts can do that to the extent the local law allows them to independent of whether Canadian courts do; Chinese and Saudi courts are neither bound nor empowered by Canadian precedent (I doubt either would even treat it as persuasive precedent, much less binding.)
escapetech 9y ago
This wouldn't be the first time a government is requiring Google to modify their search results. This case parallels the "right to be forgotten" cases brought against them by the EU several years ago. There is a reason that civil liberties and human rights organizations like the ACLU are concerned about this precedent. In the US, with the murders of unarmed civilians by law enforcement and subsequent acquittals occurring at an alarming rate with increasing public outrage, it might be only a matter of time before a court somewhere rules in the favor of a person found innocent who is suing to keep as many details of a particular murder off the Internet on the grounds that his or her constitutional rights being violated (i.e inability to find employment, friendship, etc), and companies such as Google being forced to comply with the court's rulings.
- Analemma_ 9y ago
  It's not going to be the last time either. Sovereign countries are waking up to the dangers of letting the internet be run by 5 huge American companies, and they're not going to continue to take "the internet is global, your sovereignty isn't" as answer for why their laws and court orders can't be enforced. This is the beginning of widespread internet Balkanization, for better or worse.
  - escapetech 9y ago
    Yes, with matters like censorship and human rights abuses being allowed to continue under the guise of "national sovereignty" and "states rights", then yes, the Balkanization of information flow is the only outcome we can expect.
- dmix 9y ago
  > There is a reason that civil liberties and human rights organizations like the ACLU are concerned about this precedent. Yes, this sounds bad for the internet in many ways. One recent particular case comes to mind of this guy who is suing Encyclopedia Dramatica (a 4-chan style wiki with a satirical and intentionally humorous backstory for most internet memes). The banner on top of their site asking for donations for a legal battle now says: >> "JONATHAN MONSARRAT FILED A SLAPP SUIT AGAINST US. " SLAPP = https://www.wikiwand.com/en/Strategic_lawsuit_against_public_participation https://www.wikiwand.com/en/Strategic_lawsuit_against_public... This is a guy who had a profile on the wiki because he was internet famous setting up a fake dating site while a student at MIT in order to get preference to message all girls who signed up. He was investigated for harassing girls. http://hlrecord.org/2003/04/dating-service-creator-accused-of-harassing-students/ http://hlrecord.org/2003/04/dating-service-creator-accused-o... He's also a known lawsuit troll who is trying to repair his name in search engines via DMCA claims and lawsuits. He has also sued online commenters who spoke ill about him: https://www.techdirt.com/articles/20130608/08444123372/jonathan-monsarrat-drops-ridiculous-lawsuit-against-online-commenters.shtml https://www.techdirt.com/articles/20130608/08444123372/jonat... More about the latest lawsuit here: http://theralphretort.com/encyclopedia-dramatica-in-danger-of-closing-after-750k-lawsuit-5024017/ http://theralphretort.com/encyclopedia-dramatica-in-danger-o... This just offers people like him another outlet to waste peoples time in court. But in practice the Streisand Effect has the opposite effect of actually helping him protect his name so I really wonder what practical benefits this really provides anyone. It seems like there are far more illegitimate reasons for this to be used than good ones. And considering there is no automated way to filter these I'm much more inclined to say there should NOT be a centrally controlled way to remove things from being listed on Google in this way. Even with this particular court case if a business moves away or shuts down then Google's algorithms will eventually downgrade the ranking of the companies presence online in relation to that location. If they want a global presence then it's up to them to outrank other sites by getting press or for Google to properly flesh out the better sites. This is a problem that is obviously better solved by Google's engineers than the courts.
sharemywin 9y ago
Completely read that wrong. Thought it order google to remove it's own website addresses from search results. that would have been interesting.
- Bakary 9y ago
  This would be a significant victory against people who use Google to search for Google and then perform a search. These types do exist.
slantyyz 9y ago
Canadian law professor Michael Geist has a pretty good summary/analysis of this case: http://www.michaelgeist.ca/2017/06/global-internet-takedown-orders-come-canada-supreme-court-upholds-international-removal-google-search-results/ http://www.michaelgeist.ca/2017/06/global-internet-takedown-...
- deleted 9y ago
  [deleted]
awinter-py 9y ago
Ironically, now that G has been ordered by a court to take the content down, keeping it up is a form of protest, i.e. a comment on the law, i.e. political speech.
- gboudrias 9y ago
  No irony to it, freedom of speech is way more limited in Canada: https://en.wikipedia.org/wiki/Freedom_of_speech_in_Canada https://en.wikipedia.org/wiki/Freedom_of_speech_in_Canada My journalism teacher used to say that legally speaking, there is no such thing as free speech here. Either way, I'm sure the Supreme Court has considered this.
  - vkou 9y ago
    There is plenty of free speech in Canada. It draws the line at hate speech differently then the United States does, but the concept is not foreign to the US either. See - the checkered history of 'fighting words'.
- tjl 9y ago
  That's not how it works.
  - awinter-py 9y ago
    I don't know any canadian / european case law on speech, so you're probably right w.r.t the law. In the US speech is one area where the courts (sometimes) enforce abstract ideals over justice over the needs of the state and the demands of law enforcement.
massar 9y ago
The EFF is apparently on the side of ElGoog: https://www.eff.org/cases/google-v-equustek https://www.eff.org/cases/google-v-equustek "Such a broad injunction sets a dangerous precedent, especially given that it is likely to conflict with the laws of other nations."
CobrastanJorji 9y ago
> "Today's decision confirms that online service providers...have an affirmative duty to take steps to prevent the internet from becoming a black market." Well that's terrifying.
seomint 9y ago
Why don't they just use robots.txt to keep themselves out of Google's index? User-agent: Googlebot Disallow: / Has Google stopped using that directive?
- ramy_d 9y ago
  I would really like an answer to this question as well. Is there something we are missing?
  - subroutine 9y ago
    Yes, Equustek obtained court orders requiring Google to remove Datalink websites from its Canadian search results. That is, Equustek does not own the Datalink website, but wants it de-indexed. And just to clarify, this article was about Equustek obtaining a further injunction from the court ordering Google to remove the websites from its global search results.
    - ramy_d 9y ago
      whoa that's messed up, I think google is right in that this is between Equustek and Datalink. This does indeed seem like a bad precedent.
      - tjl 9y ago
        Except, they've fled the country and only can continue business because of Google's search results. So, Google is basically contributing to their business existing. That's why the order was granted.
        ramy_d 9y ago
        That is indeed a tough spot to be in. What about Bing? and what if google didn't have an office in Canada? Who would get sued then? tough call.
  - deleted 9y ago
    [deleted]
downandout 9y ago
I wonder if this decision can be used as a framework to kill extortion-based sites such as RipoffReport.com that Google has aided and abetted for more than a decade. That would be wonderful.
- djrogers 9y ago
  >aided and abetted I'm not sure that phrase means what you think it does... Or perhaps you simply misunderstand what Google does?
  - downandout 9y ago
    I realize that you were trying to be condescending, and you did a good job of it. However, Google has rewarded this site in particular with staggeringly high search rankings, which makes things especially sticky for the victims of the site. They have been on notice about this site and others like it for almost the entire time that they have existed [1], and have actively refused to even adjust their rankings - despite clear evidence that these sites are committing extortion. So yes, Google is aiding in the commission of the crime of extortion. If I were to file a complaint on the site about how someone named "djrogers" is a condescending jerk on HN that broke into my house and stole my wallet, that complaint would be posted on the site within minutes with no fact checking, and then Google would rank it almost instantly at the top of their results for "djrogers". One day you might Google your username and see this complaint in the #1 position, and you would probably contact the site saying that this is absolutely false. The site's owner, Ed Magedson, would personally respond essentially saying that he has been sued many times, that he has always won, and that the report isn't going anywhere...unless you pay thousands of dollars (allegedly the fees go to "investigate" the veracity of the claims in the report, after which it will be amended or removed if found to be entirely false - but only if you pay). He will make extensive reference specifically to how well his site ranks in Google, with the implied threat that if you do not pay, anyone who Googles your name will see this defamatory information (which they will). When you know that you are assisting in the commission of a crime, you are aiding and abetting. [1] https://moz.com/blog/the-anatomy-of-a-ripoff-report-lawsuit https://moz.com/blog/the-anatomy-of-a-ripoff-report-lawsuit
lwlml 9y ago
Every time something like this happens I wish YaCy (http://yacy.net/en/index.html http://yacy.net/en/index.html) was in better shape.
- donatj 9y ago
  I wasn't aware this existed but I am absolutely intrigued.
mowenz 9y ago
>"We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods." That precise argument may be well-intentioned, but it threatens free speech because it sets a precedent placing a burden of acceptable effects and results of free speech. In other words, should Tiamen Square be de-indexed globally because free speech in China does not require it. Should torrent trackers be de-indexed--free speech does not require illegal file sharing, after all? What about bit torrent clients? Tor browser? This site may or may not be rightfully de-indexed, but it is not because of some limitations of free speech.
- mrout 9y ago
  >In other words, should Tiamen Square be de-indexed globally because free speech in China does not require it. Should torrent trackers be de-indexed--free speech does not require illegal file sharing, after all? What about bit torrent clients? Tor browser? The Canadian courts are not saying 'you must remove these results', not really. They're saying 'you must remove these results or not operate in Canada', effectively. If China said 'hey google, remove Tianammen Sq from all of your results, not just China' Google could simply refuse to do so. If they did, they probably want to get the hell out of China. If a court somewhere ruled that torrent clients should be removed from all global search results, then it would be up to Google whether they want to continue operating in that jurisdiction. If they do, then they are subject to the laws of that jurisdiction. Should torrent trackers be de-indexed? Who cares? It's not about should. It's not about what is ideal. It's about what is and is not.
chrisparton1991 9y ago
I wonder if the website in question is listed on other search engines (I can't see why not). Assuming this is the case, is it fair to force one company to expend the effort altering their search results when others don't have to? Did Google do anything wrong that Microsoft (Bing) or Yahoo didn't?
qb45 9y ago
I've never expected to use a Russian search engine to evade censorship but there we go: https://www.google.com/search?q=datalink+gw1000 https://www.google.com/search?q=datalink+gw1000 https://yandex.ru/search/?text=datalink+gw1000 https://yandex.ru/search/?text=datalink+gw1000
- micael_dias 9y ago
  I'm amazed they provide links to other search engines at the bottom of the results.
  - qb45 9y ago
    I suppose it's for convenience when yandex doesn't find what you are looking for. Don't worry, Russia isn't exactly a freedom of speech heaven and if the government had a serious issue with these other search engines they wouldn't be there. https://en.wikipedia.org/wiki/Federal_Service_for_Supervision_in_the_Sphere_of_Telecom,_Information_Technologies_and_Mass_Communications https://en.wikipedia.org/wiki/Federal_Service_for_Supervisio...
    - dagenleg 9y ago
      At the same time you don't see google or bing linking to other search engines. So I think linking to the competitors for your users convenience is a pretty neat thing to do, which probably irks countless top managers daily. Don't belittle that little neat touch just because it's a russian website.
      - qb45 9y ago
        True and I don't dispute that. I'm not even sure if what I posted makes much sense, I was somehow stuck in the context of using alternative search engines to evade censorship and figured that parent suggests that these links may have something to do with it.
- jhasse 9y ago
  First time I've used Yandex and it is a perfect example why Google is still the best search engine: The Yandex site has a fixed header (wasting vertical screen space), useless animations in the footer, and Firefox showed me that it blocked Flash from running ...
known 9y ago
Not honoring http://www.robotstxt.org/faq/prevent.html http://www.robotstxt.org/faq/prevent.html can be a felony;
OscarTheGrinch 9y ago
If a product or service is a proven scam, it is highly likely to be a scam in all jurisdictions. Googles own takedown procedure should have fixed this before it got to the courts.
ominous 9y ago
Removing results from google makes so little sense. Can I buy google ads pointing to those blocked websites?
Coffee_lover 9y ago
I am confused as to how a Canadian court could have any sway on search results in other countries? Is there even any legal precedent on the matter?

257 points by executive 9y ago

andrewclunn 9y ago

I'm much more worried about these governments and their censorship than I am Google's near monopoly on search.

marlokk 9y ago

If you kill freedom, freedom wins.

ABCLAW 9y ago

Tremendously impactful decision, regardless of which side of the case you support. Interestingly, the majority addressed a Google argument centered upon concerns regarding the possibility of international censorship: "Google’s argument that a global injunction violates international comity because it is possible that the order could not have been obtained in a foreign jurisdiction, or that to comply with it would result in Google violating the laws of that jurisdiction, is theoretical. If Google has evidence that complying with such an injunction would require it to violate the laws of another jurisdiction, including interfering with freedom of expression, it is always free to apply to the British Columbia courts to vary the interlocutory order accordingly. To date, Google has made no such application. In the absence of an evidentiary foundation, and given Google’s right to seek a rectifying order, it is not equitable to deny E the extraterritorial scope it needs to make the remedy effective, or even to put the onus on it to demonstrate, country by country, where such an order is legally permissible." In other words, if an interlocutory order with international scope would violate foreign freedom of expression legislation (or other legislation in general), it would be possible to seek to vary the interlocutory order by raising those issues specifically. This framework should be familiar to jurists in Canada, as it resembles the Paramountcy doctrine. Whether or not this case will be widely used is unclear. This case is nearly 100% fact-perfect for the Respondent - it honestly looks like a civil-rights test case. It is very possible that imperfect everyday facts provide sufficient fuel for judges to distinguish this case from the case in front of them. The dissent is interesting because it lists a number of pieces of evidence the dissenters would have needed to see before moving forward, including the impact of the first order on sales figures. These dissents often provide counsel with information regarding how to structure future cases in order to avoid outstanding concerns. These are my first pass thoughts. I'll probably read it through another two times before the day is done.

joatmon-snoo 9y ago
Not a lawyer, so I'm happy to see that the passage that caught my eye also caught yours. Other bits that I found interesting: > [107] Google asserts that the Court does not have the authority to make an order of the kind sought. In issue is whether the Court has “subject matter competence”. The plaintiffs and Google agree that the type of order I am asked to make has never before been made by a Canadian court. > [119] I do not accept Google’s submission that the Court only has authority to make an order against a non-party in relation to contempt or to further fact finding necessary to effect justice. Lack of precedent should not be confused with lack of subject matter competence. > [133] I conclude that the Court has authority to grant an injunction against a non-party resident in a foreign jurisdiction in appropriate circumstances. ===== Something I have to wonder about: there's nothing here that speaks to the technical difficulties intrinsic to the process of de-listing a website. Say Google blacklists "www.very-obviously-illegal-under-canadian-law.com". The offending party then registers "www.completely-irrelevant-url-1.com" and "www.irrelevant-url-2.ca" and so on. Is Google expected to permanently block these URLs? What if some of these URLs were obtained illegally (or more generally, what burden of proof must be achieved to demonstrate that a website should be blacklisted)? Is there some way for people - especially prospective buyers for these DNS records - to know that these URLs have been blacklisted? ===== Ruling link: http://www.courts.gov.bc.ca/jdb-txt/SC/14/10/2014BCSC1063.htm http://www.courts.gov.bc.ca/jdb-txt/SC/14/10/2014BCSC1063.ht...
cbhl 9y ago
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.
- ABCLAW 9y ago
  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. Edit: Made the middle a bit clearer.

crb002 9y ago

Google should have country specific feeds (canada.google.com) instead of domains. Then location based filtering is forced on the browser where it should be.

QuercusMax 9y ago
I'm not sure I follow - canada.google.com is a domain, as is google.ca. What are you actually suggesting?

timthelion 9y ago

I was expecting the ruling to involve some really bad behavior such as selling misslabeled drugs or invading the privacy of private individuals. Instead it is a benign product relabling suit. IMO, product relabeling doesn't even harm the company who's products are relabeled.

shallot_router 9y ago
Could you elaborate? I don't really know much about relabeling. The company seems to be claiming that the infringing company is selling products under company A's name when they have no actual affiliation, which sounds like ordinary fraud to me. edit: Nevermind, I misread. There is no fraud or impersonation occurring.
- timthelion 9y ago
  If the article is correct, I quote "Equustek had successfully sued another company for relabelling its products and passing them off as their own.". That means that the offending company was buying Equustek's product and putting a different sticker on them.
  - shallot_router 9y ago
    Ah, thanks. I parsed that sentence incorrectly the first time I read it.

kodablah 9y ago

A hypothetical: Company A is in country X and company B is in country Y. Country X declares on behalf of company A that company B be blocked from searches worldwide (including country Y). Country Y declares on behalf of company B that company B cannot be blocked from searches (at least in country Y). Who wins in the global context? Whichever can/will fine the most? Does this give benefits to the overly-regulating country/region and is that what we want? Another hypothetical question: Can Canada require some retailer in the US to remove another non-Canadian company's products in the US just because the retailer and a competing company both have presence in Canada?

bradleyjg 9y ago
Ultimately one company can't do business in, and be subject to the jurisdiction of, two countries whose laws require them to do opposite things. If push really came to shove Google would leave Canada--no offices, no ad sales, no shipping physical product there. Maybe even put a clause in their ToS saying that their products couldn't be used from Canada. If they did all that and Canadian courts still tried to fine it or award damages against it then other countries' courts would refuse to enforce those rulings.
- kodablah 9y ago
  I consider this the nuclear option and one that is unlikely for a large corp if we're just talking about fines (as opposed to purely opposing laws as in my hypothetical). For a normal company if the ROI of their presence > the negative ROI of complying with orders, they will remain. My question was more targeting the public and whether they accept that more restrictive regional rulings will win out. This also comes into play w/ recent EU rulings. With a large company, fragmenting features in location-specific ways is reasonable. But for other smaller companies, they have to weigh whether the loss of customers costs less than location-specific feature implementations. In general, with the internet, we should err on the side of lesser regulation IMO (which can appear to favor businesses over consumers). But this has been a political discussion for ages, predating globalism.
  - 9y ago

pavanky 9y ago

This kind of stuff should be arbitrated in an international court. Giving an authority in a single country the say on what can and can not be seen on the internet world wide is a terrible idea.

vkou 9y ago
Under which legal framework? Common law? Civil law? Old Testament law? Sharia law? The framework laid out by the Constitution of the Soviet Union? The US codex of law, circa 1953? Circa 2007? Circa Citizens United? Should everyone get a chance to vote for choosing it? Should we decide based on population of respective countries? Or do a one-country-one-vote thing? Maybe one dollar of GDP, one vote? Why should Chinese commercial law have any bearing on a trade dispute between Honduras, Belgium, and Spain?
- bdamm 9y ago
  Multi-national binding protocols have been done in the past and will be done in the future. Where the international community sees it necessary, there can be the creation of international law. Certainly this case is something for which international law and enforcement regimes can be created.
  - vkou 9y ago
    They are all the products of bi-lateral or multi-lateral treaties, hammered out in secret meetings between senior members of participating governments. There is absolutely no "International community" involved in this process. It's a private settlement between directly affected parties. These agreements also tend to be incredibly undemocratic, and are often hilariously hostile to the interests of the constituents of said governments. Be careful what you wish for - what you'll get is less like the European Union, and more like the TPP.
- keithpeter 9y ago
  https://www.itlos.org/ https://www.itlos.org/ Something like this has existed since league of nations days. The model appears to be a convention which individual states accept and pass into their national laws, and then a tribunal to adjudicate on disputes about the terms of the convention - so the tribunal only sees a small number of cases. Not routine stuff. https://link.springer.com/article/10.1007/BF03195054 https://link.springer.com/article/10.1007/BF03195054 This page lists some of the adjudications.

gdulli 9y ago

> Google voluntarily removed hundreds of webpages from its Canadian search results on Google.ca. But the material continued to show up on Google's global search results. > So Equustek obtained a further injunction from the court ordering Google to remove the websites from its global search results. > Google appealed and argued it was not a real party to the dispute, and that a global injunction would violate freedom of expression. Google didn't object in principle to removing the listings from google.ca but did object to removing them from the the main site results. What does that mean, there's actually no objection in principle but there's enough technical challenge or cost to modifying the global results that they're willing to fight it in court?

skybrian 9y ago
There's a question of jurisdiction. Should any country's courts be able to restrict what happens in other countries?
- vkou 9y ago
  I don't know if they should, but de-facto they can. American companies are, for instance, forbidden from doing business within Iran, North Korea, etc. Likewise, nothing stops the US from passing an enforcing a law that requires any foreign companies that do business with the US to follow US laws, even in their operations outside the US.
  - L_Rahman 9y ago
    My mental model for this is as follows: 1. If you are a company based in and operating as a legal entity in Country X, the laws of Country X apply to your business as a whole, including services you offer in Country Y and Country Z. 2. If you are a company based in and operating as a legal entity in Country X but are offering services in Country Y, the laws of Country Y apply only to the services you offer in that Country Y. All of this can then get mushy and complicated based on international governing bodies, multinational trade agreements and nation-state soft power but absent those constraints, I believe this holds.
  - 9y ago

Matthewiiv 9y ago

This is total bullshit. Relatively benign ruling but sets a dangerous precedent.

vkou 9y ago
For which courts? Canadian rulings would not be considered precedent-setting in a Saudi court.
- awa 9y ago
  Its precedent settings i.e. if google follows it, then china and saudi court can ask them to do the same since these kind of rulings become fair game.
  - dragonwriter 9y ago
    Chinese and Saudi courts can do that to the extent the local law allows them to independent of whether Canadian courts do; Chinese and Saudi courts are neither bound nor empowered by Canadian precedent (I doubt either would even treat it as persuasive precedent, much less binding.)

escapetech 9y ago

This wouldn't be the first time a government is requiring Google to modify their search results. This case parallels the "right to be forgotten" cases brought against them by the EU several years ago. There is a reason that civil liberties and human rights organizations like the ACLU are concerned about this precedent. In the US, with the murders of unarmed civilians by law enforcement and subsequent acquittals occurring at an alarming rate with increasing public outrage, it might be only a matter of time before a court somewhere rules in the favor of a person found innocent who is suing to keep as many details of a particular murder off the Internet on the grounds that his or her constitutional rights being violated (i.e inability to find employment, friendship, etc), and companies such as Google being forced to comply with the court's rulings.

Analemma_ 9y ago
It's not going to be the last time either. Sovereign countries are waking up to the dangers of letting the internet be run by 5 huge American companies, and they're not going to continue to take "the internet is global, your sovereignty isn't" as answer for why their laws and court orders can't be enforced. This is the beginning of widespread internet Balkanization, for better or worse.
- escapetech 9y ago
  Yes, with matters like censorship and human rights abuses being allowed to continue under the guise of "national sovereignty" and "states rights", then yes, the Balkanization of information flow is the only outcome we can expect.
dmix 9y ago
> There is a reason that civil liberties and human rights organizations like the ACLU are concerned about this precedent. Yes, this sounds bad for the internet in many ways. One recent particular case comes to mind of this guy who is suing Encyclopedia Dramatica (a 4-chan style wiki with a satirical and intentionally humorous backstory for most internet memes). The banner on top of their site asking for donations for a legal battle now says: >> "JONATHAN MONSARRAT FILED A SLAPP SUIT AGAINST US. " SLAPP = https://www.wikiwand.com/en/Strategic_lawsuit_against_public_participation https://www.wikiwand.com/en/Strategic_lawsuit_against_public... This is a guy who had a profile on the wiki because he was internet famous setting up a fake dating site while a student at MIT in order to get preference to message all girls who signed up. He was investigated for harassing girls. http://hlrecord.org/2003/04/dating-service-creator-accused-of-harassing-students/ http://hlrecord.org/2003/04/dating-service-creator-accused-o... He's also a known lawsuit troll who is trying to repair his name in search engines via DMCA claims and lawsuits. He has also sued online commenters who spoke ill about him: https://www.techdirt.com/articles/20130608/08444123372/jonathan-monsarrat-drops-ridiculous-lawsuit-against-online-commenters.shtml https://www.techdirt.com/articles/20130608/08444123372/jonat... More about the latest lawsuit here: http://theralphretort.com/encyclopedia-dramatica-in-danger-of-closing-after-750k-lawsuit-5024017/ http://theralphretort.com/encyclopedia-dramatica-in-danger-o... This just offers people like him another outlet to waste peoples time in court. But in practice the Streisand Effect has the opposite effect of actually helping him protect his name so I really wonder what practical benefits this really provides anyone. It seems like there are far more illegitimate reasons for this to be used than good ones. And considering there is no automated way to filter these I'm much more inclined to say there should NOT be a centrally controlled way to remove things from being listed on Google in this way. Even with this particular court case if a business moves away or shuts down then Google's algorithms will eventually downgrade the ranking of the companies presence online in relation to that location. If they want a global presence then it's up to them to outrank other sites by getting press or for Google to properly flesh out the better sites. This is a problem that is obviously better solved by Google's engineers than the courts.

sharemywin 9y ago

Completely read that wrong. Thought it order google to remove it's own website addresses from search results. that would have been interesting.

Bakary 9y ago
This would be a significant victory against people who use Google to search for Google and then perform a search. These types do exist.

slantyyz 9y ago

Canadian law professor Michael Geist has a pretty good summary/analysis of this case: http://www.michaelgeist.ca/2017/06/global-internet-takedown-orders-come-canada-supreme-court-upholds-international-removal-google-search-results/ http://www.michaelgeist.ca/2017/06/global-internet-takedown-...

deleted 9y ago
[deleted]

awinter-py 9y ago

Ironically, now that G has been ordered by a court to take the content down, keeping it up is a form of protest, i.e. a comment on the law, i.e. political speech.

gboudrias 9y ago
No irony to it, freedom of speech is way more limited in Canada: https://en.wikipedia.org/wiki/Freedom_of_speech_in_Canada https://en.wikipedia.org/wiki/Freedom_of_speech_in_Canada My journalism teacher used to say that legally speaking, there is no such thing as free speech here. Either way, I'm sure the Supreme Court has considered this.
- vkou 9y ago
  There is plenty of free speech in Canada. It draws the line at hate speech differently then the United States does, but the concept is not foreign to the US either. See - the checkered history of 'fighting words'.
tjl 9y ago
That's not how it works.
- awinter-py 9y ago
  I don't know any canadian / european case law on speech, so you're probably right w.r.t the law. In the US speech is one area where the courts (sometimes) enforce abstract ideals over justice over the needs of the state and the demands of law enforcement.

massar 9y ago

The EFF is apparently on the side of ElGoog: https://www.eff.org/cases/google-v-equustek https://www.eff.org/cases/google-v-equustek "Such a broad injunction sets a dangerous precedent, especially given that it is likely to conflict with the laws of other nations."

CobrastanJorji 9y ago

> "Today's decision confirms that online service providers...have an affirmative duty to take steps to prevent the internet from becoming a black market." Well that's terrifying.

seomint 9y ago

Why don't they just use robots.txt to keep themselves out of Google's index? User-agent: Googlebot Disallow: / Has Google stopped using that directive?

ramy_d 9y ago
I would really like an answer to this question as well. Is there something we are missing?
- subroutine 9y ago
  Yes, Equustek obtained court orders requiring Google to remove Datalink websites from its Canadian search results. That is, Equustek does not own the Datalink website, but wants it de-indexed. And just to clarify, this article was about Equustek obtaining a further injunction from the court ordering Google to remove the websites from its global search results.
  - ramy_d 9y ago
    whoa that's messed up, I think google is right in that this is between Equustek and Datalink. This does indeed seem like a bad precedent.
    - tjl 9y ago
      Except, they've fled the country and only can continue business because of Google's search results. So, Google is basically contributing to their business existing. That's why the order was granted.
      - ramy_d 9y ago
        That is indeed a tough spot to be in. What about Bing? and what if google didn't have an office in Canada? Who would get sued then? tough call.
- deleted 9y ago
  [deleted]

downandout 9y ago

I wonder if this decision can be used as a framework to kill extortion-based sites such as RipoffReport.com that Google has aided and abetted for more than a decade. That would be wonderful.

djrogers 9y ago
>aided and abetted I'm not sure that phrase means what you think it does... Or perhaps you simply misunderstand what Google does?
- downandout 9y ago
  I realize that you were trying to be condescending, and you did a good job of it. However, Google has rewarded this site in particular with staggeringly high search rankings, which makes things especially sticky for the victims of the site. They have been on notice about this site and others like it for almost the entire time that they have existed [1], and have actively refused to even adjust their rankings - despite clear evidence that these sites are committing extortion. So yes, Google is aiding in the commission of the crime of extortion. If I were to file a complaint on the site about how someone named "djrogers" is a condescending jerk on HN that broke into my house and stole my wallet, that complaint would be posted on the site within minutes with no fact checking, and then Google would rank it almost instantly at the top of their results for "djrogers". One day you might Google your username and see this complaint in the #1 position, and you would probably contact the site saying that this is absolutely false. The site's owner, Ed Magedson, would personally respond essentially saying that he has been sued many times, that he has always won, and that the report isn't going anywhere...unless you pay thousands of dollars (allegedly the fees go to "investigate" the veracity of the claims in the report, after which it will be amended or removed if found to be entirely false - but only if you pay). He will make extensive reference specifically to how well his site ranks in Google, with the implied threat that if you do not pay, anyone who Googles your name will see this defamatory information (which they will). When you know that you are assisting in the commission of a crime, you are aiding and abetting. [1] https://moz.com/blog/the-anatomy-of-a-ripoff-report-lawsuit https://moz.com/blog/the-anatomy-of-a-ripoff-report-lawsuit

lwlml 9y ago

Every time something like this happens I wish YaCy (http://yacy.net/en/index.html http://yacy.net/en/index.html) was in better shape.

donatj 9y ago
I wasn't aware this existed but I am absolutely intrigued.

mowenz 9y ago

>"We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods." That precise argument may be well-intentioned, but it threatens free speech because it sets a precedent placing a burden of acceptable effects and results of free speech. In other words, should Tiamen Square be de-indexed globally because free speech in China does not require it. Should torrent trackers be de-indexed--free speech does not require illegal file sharing, after all? What about bit torrent clients? Tor browser? This site may or may not be rightfully de-indexed, but it is not because of some limitations of free speech.

mrout 9y ago
>In other words, should Tiamen Square be de-indexed globally because free speech in China does not require it. Should torrent trackers be de-indexed--free speech does not require illegal file sharing, after all? What about bit torrent clients? Tor browser? The Canadian courts are not saying 'you must remove these results', not really. They're saying 'you must remove these results or not operate in Canada', effectively. If China said 'hey google, remove Tianammen Sq from all of your results, not just China' Google could simply refuse to do so. If they did, they probably want to get the hell out of China. If a court somewhere ruled that torrent clients should be removed from all global search results, then it would be up to Google whether they want to continue operating in that jurisdiction. If they do, then they are subject to the laws of that jurisdiction. Should torrent trackers be de-indexed? Who cares? It's not about should. It's not about what is ideal. It's about what is and is not.

chrisparton1991 9y ago

I wonder if the website in question is listed on other search engines (I can't see why not). Assuming this is the case, is it fair to force one company to expend the effort altering their search results when others don't have to? Did Google do anything wrong that Microsoft (Bing) or Yahoo didn't?

qb45 9y ago

I've never expected to use a Russian search engine to evade censorship but there we go: https://www.google.com/search?q=datalink+gw1000 https://www.google.com/search?q=datalink+gw1000 https://yandex.ru/search/?text=datalink+gw1000 https://yandex.ru/search/?text=datalink+gw1000

micael_dias 9y ago
I'm amazed they provide links to other search engines at the bottom of the results.
- qb45 9y ago
  I suppose it's for convenience when yandex doesn't find what you are looking for. Don't worry, Russia isn't exactly a freedom of speech heaven and if the government had a serious issue with these other search engines they wouldn't be there. https://en.wikipedia.org/wiki/Federal_Service_for_Supervision_in_the_Sphere_of_Telecom,_Information_Technologies_and_Mass_Communications https://en.wikipedia.org/wiki/Federal_Service_for_Supervisio...
  - dagenleg 9y ago
    At the same time you don't see google or bing linking to other search engines. So I think linking to the competitors for your users convenience is a pretty neat thing to do, which probably irks countless top managers daily. Don't belittle that little neat touch just because it's a russian website.
    - qb45 9y ago
      True and I don't dispute that. I'm not even sure if what I posted makes much sense, I was somehow stuck in the context of using alternative search engines to evade censorship and figured that parent suggests that these links may have something to do with it.
jhasse 9y ago
First time I've used Yandex and it is a perfect example why Google is still the best search engine: The Yandex site has a fixed header (wasting vertical screen space), useless animations in the footer, and Firefox showed me that it blocked Flash from running ...

known 9y ago

Not honoring http://www.robotstxt.org/faq/prevent.html http://www.robotstxt.org/faq/prevent.html can be a felony;

OscarTheGrinch 9y ago

If a product or service is a proven scam, it is highly likely to be a scam in all jurisdictions. Googles own takedown procedure should have fixed this before it got to the courts.

ominous 9y ago

Removing results from google makes so little sense. Can I buy google ads pointing to those blocked websites?

Coffee_lover 9y ago

I am confused as to how a Canadian court could have any sway on search results in other countries? Is there even any legal precedent on the matter?