The Canadian Supreme Court today ruled the country has the authority to demand Google censor and remove links to certain web pages or online content.
The idea that governments can force Google to deindex links to pages is unfortunately not new (see the European Union’s “right to be forgotten“). What matters internationally in this case is the government is forcing Google to remove links from searches regardless of where the Internet user is. That is to say: Canada is demanding the authority to censor the internet outside of its physical borders and control what people who are not Canadian citizens can find online.
Today’s court ruling declares that because the Internet doesn’t have any borders, when Canada decides Google has to censor content it should be a global order: “The Internet has no borders — its natural habitat is global. The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates — globally.”
The case involves copyright and intellectual property claims. A tech firm was accusing another firm of stealing and duplicating one of its products and selling it online. Google was asked to deindex the links to the firm accused of stealing so that it wouldn’t show up in search results. Google complied with court orders, but only for searches from within Canada.
Canada’s Supreme Court sees geographical limits (even virtual ones) on its ability to censor speech as “facilitating” illegal commerce rather than a speech issue. Here’s a paragraph from the ruling that should give folks pause:
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. We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.
Canada has hate speech laws. Does it follow that Canada should require Google to deindex pages containing what it deems “hate speech” in the United States? If Canada does not because it acknowledges limits to its reach as a nation is it “facilitating” something unlawful?
The court notes Google removes links due to court orders based on content and still doesn’t seem to see an issue in a country’s boundary of authority:
[Google] acknowledges, fairly, that it can, and often does, exactly what is being asked of it in this case, that is, alter search results. It does so to avoid generating links to child pornography and websites containing “hate speech”. It also complies with notices it receives under the US Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2680 (1998) to de-index content from its search results that allegedly infringes copyright, and removes websites that are subject to court orders.
The court, in justifying its ruling, is unwittingly bringing up problems with the Digital Millennium Copyright Act (DMCA). The DMCA is intended as a tool for fight online piracy and intellectual property theft by making it easier to remove copyrighted material through an ownership claim process. It is also prone to abuse.
People abuse the DMCA’s “take down” process in order to try to censor speech, critiques or commentary, they find objectionable. It can be as minor as trying to censor critical video game reviews, or extend as far as criticizing another country’s leaders. Ecuadorian officials once attempted to use the DMCA to censor criticism of government actions. Google itself has stepped in to try to help users fend off abusive DMCA take-down requests.
Invoking other forms of legally recognized internet censorship is not, perhaps, the defense Canada’s Supreme Court is looking for. A closer examination highlights the potential for abuses. And claiming the authority to censor Google links everywhere in the world is a decision begging to be abused.