7 ms·

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 T

by 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.
- visarga 9y ago
  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.
  - ocdtrekkie 9y ago
    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.
    - avar 9y ago
      > 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.
visarga 9y ago
Wait 'till Erdogan has something to add to that list.
naasking 9y ago
> Should every court and country have the right to demand that things are de-indexed worldwide, now that Canada has done so? Canadian legal precedent doesn't apply in other countries. This isn't like setting a precedent within your own country.
- oh_sigh 9y ago
  Sure, but China would then have a good suspicion that they could coerce Google into doing this
  - naasking 9y ago
    China already has just as much leverage against Google as Canada: do what we say or you can't operate in our country.
    - qb45 9y ago
      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.
  - jussij 9y ago
    But which court order would China site to back up that coercion? For example no court is ever going to find Tiananmen Square never happened.
- blazespin 9y ago
  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?
- qb45 9y ago
  > 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.
jussij 9y ago
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."
- qb45 9y ago
  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.

by cbhl 9y ago

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.

visarga 9y ago
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.
- ocdtrekkie 9y ago
  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.
  - avar 9y ago
    > 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.

visarga 9y ago

Wait 'till Erdogan has something to add to that list.

naasking 9y ago

> Should every court and country have the right to demand that things are de-indexed worldwide, now that Canada has done so? Canadian legal precedent doesn't apply in other countries. This isn't like setting a precedent within your own country.

oh_sigh 9y ago
Sure, but China would then have a good suspicion that they could coerce Google into doing this
- naasking 9y ago
  China already has just as much leverage against Google as Canada: do what we say or you can't operate in our country.
  - qb45 9y ago
    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.
- jussij 9y ago
  But which court order would China site to back up that coercion? For example no court is ever going to find Tiananmen Square never happened.
blazespin 9y ago
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?
qb45 9y ago
> 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.

jussij 9y ago

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."

qb45 9y ago
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.