Cross-Border Data

Google Takes the Global Delisting Debate to a U.S. Court

By Andrew Keane Woods
Thursday, July 27, 2017, 2:28 PM

Google filed a complaint this week in the Northern District of California to challenge a Canadian Supreme Court ruling that requires Google to delist—that is, remove from its search results—links to certain offending pages.  (I wrote about the Canadian case here.)  In short, Google’s attempt to fight a global takedown order in Canada was stymied by the fact that the order did not pose a conflict of laws.  So on Monday, Google asked the Northern District of California to create one. 

 

Background

A few weeks ago, the Supreme Court of Canada issued a so-called “global” delisting order, which requires Google to stop linking to certain offending websites from its search results not only for users in Canada, but for all users worldwide. The links in question relate to an intellectual property dispute in Canada between two firms, Equustek and Datalink, the details of which you can read here. The real concern with this order is the precedent it might set for similar delisting disputes elsewhere—notably the upcoming case before the European Court of Justice regarding global delisting orders and the so-called “right to be forgotten.”

Google fought the Canadian order on a number of grounds, but its argument primarily rested on international comity: that the Canadian court ought not to interfere with another sovereign nation’s laws, and that the order was inconsistent with the First Amendment, among other American laws. 

There was a problem with this argument, however. It was, in the words of the Canadian Supreme Court, merely “theoretical.”  As the Court noted:

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.

With no conflict of laws to take to the Canadian Supreme Court, Google is now trying to create one. In its filing this week, the company asks the Northern District of California for a declaration that enforcing the Canadian order in the U.S. would violate American law:

Google now turns to this Court, asking it to declare that the rights established by the First Amendment and the Communications Decency Act are not merely theoretical. The Canadian order is repugnant to those rights, and the order violates principles of international comity.

There are really three distinct arguments here: (1) Enforcing the Canadian order in the U.S. would violate the First Amendment; (2) enforcing the Canadian order in the U.S. would contravene the Communications Decency Act; and (3) enforcing the Canadian order in the U.S. is inconsistent with international comity. 

 

1) Does the Order Offend the First Amendment?

Google’s First Amendment argument is as follows: The Canadian order would violate the First Amendment were it to be enforced by U.S. court order because that order would constitute state action that impermissibly restricts speech.  This is not dissimilar from the argument Yahoo! successfully made before the same U.S. District Court in 2001 to prevent France from enforcing an order that Yahoo! take down pages selling Nazi-related memorabilia. Here, however, we’re not talking about controversial-but-protected speech, like Nazi memorabilia, but rather links to websites that appear to be operating in violation of Canadian law (and perhaps also American law, though that hasn’t been fully briefed). 

Google suggests that the content of those websites is not as relevant as the fact that they are publicly available; after all, Google does not host the pages, but merely links to them.  So, for example, if a U.S. court ordered Google to remove links to websites selling illegal drugs, Google would contend that it has a First Amendment right to keep the links up, since all Google is doing is alerting users to the existence of these illegal sites, which is a matter of public record.

Perhaps in order to address skepticism about this argument, Google also argues that, “The Canadian Order furthers no compelling interest (nor a substantial interest), and is not narrowly tailored to achieve one.” Equustek will likely disagree—and perhaps note the strength of the intellectual property regime in the U.S., which Google takes pains to comply with and which has had the effect of regularly changing Google’s search results. 

 

2) Does the Order Contravene the Communications Decency Act?

Google’s argument here is based in Section 230 of the Communications Decency Act (47 U.S.C. § 230), which grants intermediaries like Google a safe harbor from liability for platform content (something Benjamin Wittes, Zoe Bedell, and others have written extensively about here).  Although no one is attempting to hold the firm financially liable for content on the platform, Google argues that enforcing the Canadian order would impose a harm of the sort prohibited by the Communications Decency Act:

“As the direct and proximate result of Defendants’ conduct, Google has suffered and, if Defendants’ conduct is not stopped, will continue to suffer, irreparable injury absent injunctive relief.”

But what is that injury, really? Equustek does not seek money damages; rather, it sought an injunction preventing Google from driving traffic to Datalink’s pages.  If those pages are in fact selling illegal goods and otherwise infringing on Equustek’s intellectual property, what is the cognizable harm to Google not to be able to link to them?  Google’s briefing does not elaborate the sorts of harms it has in mind.

 

3) Does the Order Offend International Comity?

Google’s final argument in the brief is that the order, by its very extraterritoriality, offends international comity:

It is a foundational principle of jurisprudence that each country is the master of its own territory. Foreign courts therefore ordinarily refrain from issuing worldwide injunctions because they only have jurisdiction to prescribe conduct that, wholly or in substantial part, takes place within or affects their own territories.

While it is true that states regularly defer to other states’ interests in the name of comity, comity absolutely does not require courts to avoid acting extraterritorially.  Extraterritorial exercises of court authority are especially common (and permissible) when the state is protecting the rights of its citizens, and that is precisely what the Canadian courts are trying to do.

There is another problem with Google’s comity argument.  Comity is a principle of deference and respect, which courts use to restrain themselves. Out of a concern for comity, a court may abstain from ruling on a matter that belongs in another state’s courts, or may agree to enforce another state’s court judgments, and more.  The logic of comity runs in favor of another nation’s courts.  Comity is regularly used to argue that a court should enforce a foreign judgment out of respect to that nation; here, Google is asking a court to refuse to recognize a foreign judgment on the grounds that doing so would offend comity… which is odd.

 

Conclusion

Overall, and without more briefing, I’m skeptical of Google’s claims.  At its core, Google’s argument is that the Canadian order conflicts with an American sovereign interest, and despite all the doctrinal footwork, I don’t see the sovereign interest in allowing Google to link to pages that are selling illegal goods.  First Amendment absolutists will likely disagree. But whatever happens, the case has the potential to be significant.  It is a chance for a U.S. court to weigh in on global delisting orders, just as the Court of Justice for the European Union takes up the matter and after other high-profile battles in Europe over delisting in context of the right to be forgotten.  So stay tuned.